FUL, Judges Matter, Casac, Ahmed Kathrada Foundation, Defend our Democracy and Helen Suzman Foundation letter to the Speaker of Parliament re the composition of the JSC and former judge Hlophe’s nomination for that constitutional body.

The Speaker of the National Assembly
The Honourable Ms T Didiza
Parliament of the RSA
Cape Town
2 July 2024
Dear Madam Speaker,

Designation of members of the Judicial Service Commission in terms of section 178(1)(h) of the Constitution

1.) The undersigned civil society organisations are deeply concerned that the Order Paper of the National Assembly for 2 July 2024 includes Dr M J Hlophe (MK Party) among the list of members of Parliament to be designated as commissioners of the Judicial Service Commission (JSC) in terms of section 178(1)(h) of the Constitution.1 We understand that today’s JSC motion was withdrawn but our concerns remain.

    2.) The JSC plays a central role in the appointment of judges. Bearing in mind the extensive powers vested in the judiciary under the Constitution, it is no exaggeration to say that the work of the JSC is therefore crucial to the rule of law and constitutional democracy in South Africa.

    3.) The JSC has been criticised frequently for failing to carry out its constitutional mandate properly, and it has on several occasions been found to have acted unlawfully by the courts. To give two recent examples of constitutional challenges to the JSC’s processes, the JSC re-ran interviews for a vacancy on the Constitutional Court when faced with the prospect of litigation by the Council for the Advancement of the South African Constitution (CASAC). In 2023, Freedom Under Law instituted litigation to challenge the JSC’s failure to fill vacancies on the Supreme Court of Appeal. This litigation remains ongoing.

    4.) Several areas of concern over how the JSC has performed in fulfilling its constitutional mandate, including the abuse of public interviews for inappropriate purposes, have been highlighted.2 Particularly in light of this context, it is vital that those individuals designated to serve on the JSC are themselves individuals with a demonstrated commitment to upholding constitutional democracy, the rule of law, and the independence of the judiciary.3

    5.) It is in the context of the importance of the work of the JSC, and well-documented failures in how it has performed its role, that we raise concern about the prospective designation of Dr Hlophe.

    6.) It is well known that Dr Hlophe was removed from his previous office as a judge for gross misconduct, having been found to have attempted to influence judges of the Constitutional Court to decide a politically sensitive case relating to former President and now member of the MK Party, Mr JG Zuma. The finding of gross misconduct was made by the JSC itself, and confirmed by the Courts, which dismissed Dr Hlophe’s claims that the JSC had acted ultra vires, had acted unconstitutionally, and that it lacked impartiality.

    7.) Designating an individual to the JSC who has been found by the very body in question to have committed gross misconduct and has been removed from a position as a judicial officer to play a role in the selection of other judicial officers would be completely inappropriate. It would be irrational and, in our view, susceptible to legal challenge, and it would undermine public confidence in the judicial appointments process, and thereby in the judiciary.

    8.) We accordingly urge Parliament not to vote to designate Dr Hlophe as a member of the JSC, in order to protect the integrity of the JSC, the judicial appointments process, and the judiciary.