CHRIS OXTOBY & JUDITH FEBRUARY | Time to revisit eligibility requirements to be a member of parliament?

Earlier this month, the MK Party announced that it had re-instated John Hlophe as deputy president and party parliamentary leader. Hlophe had been suspended in November 2025, ostensibly for making changes to the position of party chief whip without collective consultation.

The event is of course of interest to political analysts and followers of MK’s seemingly never-ending churn in leadership positions. But Hlophe’s position in Parliament raises other questions which are important to consider.

It is well known that Hlophe made unwanted history when, in 2024, he became the first judge in democratic South Africa to be removed from office, i.e. ‘impeached’. (Judge Nkola Motata followed later the same day).

Hlophe’s move into politics followed shortly afterwards when he joined the MK Party. After the 2024 elections, barely four months after he had been removed as a judge, Hlophe was nominated to be a member of the Judicial Service Commission (JSC).

This sparked consternation. Hlophe had been removed from office for an improper attempt to influence two Constitutional Court judges to violate their oaths of office, and the prospect of someone with that track record sitting on a commission that plays a central role in selecting judges was alarming.

The Democratic Alliance, Freedom Under Law and Corruption Watch all instituted legal action to block Hlophe’s designation to the JSC.

The Western Cape High Court held that Hlophe’s designation to the JSC was unconstitutional and invalid, and set it aside. Importantly, the court found that a requirement that those who serve on the JSC be fit and proper was implicit in the Constitution.

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The case therefore establishes important principles regarding the suitability of MPs (and by extension, other commissioners) to serve on the JSC. But a further question arises which the case did not address – should there be stricter eligibility requirements on becoming an MP in the first place?

As the Constitution currently stands, there are few disqualifications from becoming a member of the National Assembly.

The existing disqualifications cover: individuals in paid service of the state; members of the NCOP, provincial legislatures and Municipal Councils; unrehabilitated insolvents; anyone declared of unsound mind by a court; and anyone convicted of an offence and sentenced to over 12 months imprisonment without the option of a fine. And that is all. (Similar eligibility requirements apply to provincial legislatures and Municipal Councils).

The disqualification relating to a criminal conviction was fully tested by former president Jacob Zuma, who was barred from standing for parliament in the 2024 elections due to his 2021 conviction for contempt of court.

And a further test may lie in wait when criminal proceedings against EFF leader Julius Malema are concluded. In October 2025, Malema was convicted of the unlawful possession and discharging of a firearm in public, and depending on the sentence imposed, may be hit by the prohibition.

But does the current Constitutional framework go far enough to ensure that membership of the legislature is not open to bad actors?

Last year, DA MP Glynnis Breytenbach introduced a private member’s bill which would amend the Constitution by adding a new ground of disqualification from the National Assembly and provincial legislatures (and thereby from the National Council of Provinces), namely that a former judge who was removed from office for gross misconduct, or any person appointed to a Chapter 9 institution who was removed from office for misconduct. (Disqualification under the amended section would also disqualify the individual from being a member of a Municipal Council).
The amendment would clearly impact Hlophe, and would have impacted former public protector Busisiwe Mkhwebane, before her resignation from parliament. But leaving aside partisan party politics and the identity of the individuals potentially affected, there is much merit in the proposal.

Membership of the National Assembly, provincial legislatures and municipal councils is crucially important to the health of our constitutional democracy.

These are the entities where laws are made covering all levels of government, which impact directly on the lives of South Africans.

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To have individuals being members of these entities when they have been found, through a constitutionally prescribed process, to have fallen short of fundamental ethical standards to the extent they have been removed from other constitutional offices, surely cannot be reconciled with the role the Constitution envisions these legislative bodies performing.

It would undermine the credibility of these bodies, and public confidence in them.

Indeed, it might be argued that the amendment should go even further. In its submission on the Bill, Freedom Under Law argued that the grounds of disqualification should be extended further to include individuals who have been declared delinquent directors of a company under the Companies Act.

The grounds of which such a declaration can be made include situations where the individual would have acted without integrity, for self-interest, abused a position of authority, breached trust, and contravened the law.

The same considerations which render an individual who has been removed from office as a judge or from a Chapter 9 institution unsuitable for membership of legislative bodies surely apply equally to someone who has been found to have acted in a manner rendering them a delinquent director.

The Bill was first published in August last year, and all has been quiet since comments on the Bill closed. It must be hoped that the Bill will not be allowed to slide.

The return of former judge Hlophe to Parliament highlights the Bill’s relevance, but the issue is much bigger than one individual. Parliament already faces distrust and scepticism about how it performs its functions.

Taking decisive steps to exclude individuals who have been proven to be ethical compromised from its membership would send a decisive message that parliament (and other legislative bodies) are determined to take action to keep the influence of such compromised individuals out of the legislative process.

Will Parliament have the courage to protect its own integrity? Let us hope so.