Judith February and Chris Oxtoby | High court’s crucial decision protects the integrity of the judiciary

On 2 June 2025, a full bench of the Western Cape High Court handed down judgment in the case brought by the Democratic Alliance (DA), Corruption Watch and Freedom Under Law against the UMkhonto weSizwe (MK) Party and Dr MJ Hlophe. 

The case is related to the National Assembly’s (NA) decision last year to designate Dr Hlophe as a member of the Judicial Service Commission (JSC). 

It will be recalled that prior to his move into politics, Hlophe had been removed from office for gross misconduct, having been found to have tried to improperly influence Constitutional Court judges in deciding a case involving former president Jacob Zuma, prior to his ascension to the Union Buildings.  
 
Initial court proceedings interdicted Dr Hlophe from taking up his place on the JSC. The recent judgment related to whether final relief should be granted.

The court held that the NA had acted unlawfully and irrationally in designating Hlophe to the JSC and further declared that Hlophe was not suitable to serve on the JSC. 

This negates the possibility, which had been raised during the court hearings, that the MK Party might simply re-nominate Hlophe once the legal process had run its course. The court also awarded punitive costs against MK and Hlophe for a range of statements and comments which attacked the integrity of individual judges and the judiciary.    

The judgment is extremely significant for several reasons.

First, it establishes clear principles about the approach the NA must take to evaluating the suitability of those it designates to serve on the JSC. It is not enough to merely accept the nomination of candidates by political parties. 

The court held that the NA’s power to designate members to serve on the JSC did not permit “rubberstamping” the nominations of political parties, which the NA had done. Instead, Parliament must engage substantively with the suitability of those nominated, considering the role the JSC plays in appointing judges, and how these impact constitutional protection for the judiciary, such as ensuring its independence and integrity. 

It is not enough, the court said, merely to designate someone who was formally eligible by virtue of being a member of Parliament. The NA must examine whether they are substantively suitable. 

In the context of this case, Hlophe had not only been removed from office as a judge for gross misconduct and had continued to justify the actions which had led to his removal, going so far as to suggest that his conduct, which was found to constitute gross misconduct, should be permitted. The court was surely correct to decide that this rendered Hlophe unsuitable to serve on the JSC.  

The principle can be extended beyond this case, however. Other members of the NA designated to the JSC will also have to meet this suitability requirement, and anything in their conduct or background which undermines the judiciary would leave them vulnerable to being found unsuitable.

Other institutions which designate members to serve on the JSC, such as the National Council of Provinces, the advocates' profession and the attorneys' profession, will also have to establish that their designees are suitable to take up the role on the JSC.

Whilst the court was keen to emphasise that the circumstances of the case were unique and exceptional, if a potential member of the JSC were to display conduct similar to Hlophe’s, which is shown to undermine the judiciary, the logic of the judgment suggests that such individuals would be unsuitable to serve on the JSC.  

Second, the judgment provides an important affirmation of the crucial role of the judiciary and the importance of the JSC feeding into the judiciary. As the judgment explains, a strong and independent judiciary is crucial to maintaining our constitutional democracy, and the JSC plays a central role in deciding who gets appointed to be a judge. 

For all superior courts below the level of the Constitutional Court, the JSC effectively decides who gets appointed, and chooses the shortlist of candidates from which the president selects Constitutional Court judges. 

The fact that Hlophe had been removed from judicial office for gross misconduct, and refused to acknowledge that he had acted wrongly, whilst continuing to attack the judiciary, drove the court to hold that his presence on the JSC would undermine the judicial appointment process, and made him unfit to assess candidates for judicial appointment. 

Hlophe’s participation in the selection of judges would, the court held, compromise the integrity of the judicial selection process and undermine public confidence in the judiciary’s ability to fulfil its constitutional mandate. 

The judgment is thus an important reminder of the impact of the work of the JSC and the judicial appointment process on the strength of the judiciary in general. It highlights the need for continued vigilance to ensure that the appointment process does not undermine the judiciary in any way.   

Third, the importance of the award of costs on a punitive, attorney and client scale against MK and Hlophe should not be overlooked. The court imposed this sanction for comments about individual judges and the judiciary, which attacked the credibility of the judiciary and the integrity of individual judges – comments the court characterised as scandalous.  

This is an important measure by the court to protect the judiciary from attacks, which can be extremely damaging. The judiciary depends on public trust and confidence in its integrity and credibility. Weaken that, and the fabric of our democratic system is threatened. 

We have previously noted that, in order to protect systems and structures of government, it is important to ensure that those who abuse those systems are held accountable for attacks that go beyond the boundaries of fair criticism and reasonable debate. This judgment shows a court taking an important step to safeguard the institution.  

There may still be an appeal against the judgment, so it is possible that the final word in this stage has not yet been written.

Nevertheless, it would be a surprise if the high court’s judgment were fundamentally overturned. It must be hoped that, if the case is considered by the appeal courts, the crucial principles established in the high court’s judgment are affirmed.