What the DA’s interdict means for John Hlophe and the JSC

The Democratic Alliance (DA) has drawn first blood in its battle to get Umkhonto Wesizwe (MK) party parliamentary leader, Dr John Hlophe, kicked off the Judicial Service Commission (JSC).

A Full Bench of the Western Cape High Court granted the DA’s interim interdict, barring Hlophe from participating in the JSC’s upcoming judicial appointment interviews in October 2024. The interim interdict will operate until a full review of the National Assembly’s (NA’s) decision to designate Hlophe as a member of the JSC is heard in the coming months.

What does this mean for the Hlophe and the JSC?

After the National Assembly’s decision to designate Hlophe as one of its six-member delegation to the JSC, the DA (with NGOs Freedom Under Law and Corruption Watch) rushed to court to reverse the decision. They argued that it was irrational for the National Assembly to designate Hlophe – a person found guilty of gross misconduct and removed from judicial office through impeachment – as a member of a body responsible for appointing new judges. Furthermore, Hlophe’s membership of the JSC would undermine the credibility of the JSC and its processes of appointing and disciplining judges, they argued.

Learn more about who sits on the JSC panel

Both the DA and Corruption Watch’s applications were split into two parts. The first part was an urgent application for an interim interdict to stop Hlophe from participating in the JSC’s upcoming interviews in October. The second part calls for a full review of the NA’s decision to designate Hlophe as a member of the JSC. The High Court’s decision on Friday, 27 September, deals only with the first part.

To obtain an interim interdict at this preliminary stage, the applicants needed to show four requirements:

•  that there was a prima facie case that the full review of the NA’s decision would succeed;
•  that there would be irreparable harm to the credibility of the JSC interviews if Hlophe were allowed to sit on the JSC;
•  that this harm outweighed any harm to Hlophe, the MK party or the NA; and
• that there would not be satisfactory remedy in the full review down the line to undo the harm to the JSC’s interviews.

The Full Bench – comprising Gauteng High Court judges Selby Baqwa and Colleen Collis and Free State High Court Judge Johannes Daffue – agreed with the applicant’s arguments at this stage. “We are satisfied that at least a very strong prima facie case has been made out to be successful in the review application,” the judges held. They found that irreparable harm would be inflicted on the JSC process if an interim order to stop Hlophe from participating in the JSC was not granted. “He may miss one or perhaps two sittings of the JSC … [but] the JSC will function in his absence,” they said, adding that no irreparable harm will befall either Hlophe or the MK.

Significantly, the court found that this is “one of the clearest cases to grant a restraining order”, as a review in due course would not protect the legitimacy of the upcoming interviews [if Hlophe is permitted to sit in them]. As such, there is no satisfactory remedy available to the applicants. While the judges left open the question of Hlophe’s eligibility to be a member of the JSC, and the NA’s decision to designate him as such, they still had stern criticism of the NA, stating that the NA simply “rubber stamped” the decision of political parties and, therefore, acted irrationally. This might raise some criticisms of the court’s decision, as it might be seen as prejudging the review court’s ultimate decision.

What does this interdict mean for Hlophe and the JSC?

The interim interdict means that Hlophe will not participate in the JSC’s largest round of judicial interviews since the Covid round in April 2021. In this round, running from 7–15 October 2024, the JSC will interview 51 candidates for 26 vacancies across various courts in the country, including the judge president and four new judges of the Western Cape High Court. Hlophe would undoubtedly have had to recuse himself from the judge president interviews (for the obvious reason of a conflict between his personal interests and those of his role as a JSC commissioner). However, he would still have been entitled to sit in on the interviews for new judges of the Western Cape High Court and other courts. The interim interdict means that it will be the first time in 25 years that Hlophe will have no say over the appointment of judges in the Western Cape.

Learn more about the October 2024 JSC Candidates

There was an argument by both the MK party and Hlophe’s lawyers that Hlophe’s non-participation as a member of the JSC would render the JSC inquorate, unable to undertake these interviews. This argument was based on a Supreme Court of Appeal judgment which found that the exclusion of then premier Helen Zille in the JSC’s decision to exonerate Hlophe for judicial misconduct rendered the JSC inquorate and the decision unlawful. The SCA found that the premier was a necessary part of the JSC. Today’s judgment was silent on this point, and simply stated that the JSC may proceed in Hlophe’s absence or the MK party and NA may designate another MP to serve in his stead. The latter part of the court’s reasoning seems dubious, as the NA’s initial decision has not been reviewed nor set aside. Therefore Hlophe’s designation still stands, although he may not participate at this stage.

In any event, the fact that there have been three JSC interview rounds since former NA speaker and JSC commissioner Nosiviwe Mapisa-Nqakula resigned from both positions in August 2023, makes clear that the participation of MPs does not affect the JSC’s quorum.

Can Hlophe appeal the interim interdict?

Interim interdicts are ordinarily not appealable unless a grave injustice would occur. It is unlikely that any court would find Hlophe’s non-participation in the JSC (even temporarily) a grave injustice. Therefore the prospects of appealing the interim order are slim to none. In any event, the DA may apply for immediate operation of the interim interdict pending the appeal. If successful, it would still mean Hlophe will not participate, even with the appeal still pending.

The more likely scenario is that Hlophe will sit out the October 2024 and April 2025 JSC meetings. This will also depend on how quickly the Western Cape High Court sets down for hearing the full review of Hlophe’s eligibility as a member of the JSC. That issue is also pending in the Constitutional Court, in a separate case brought by Afriforum. The Western Cape High Court order today interdicts Hlophe from sitting in the JSC pending both cases, whichever is heard first.

The upshot of the Western Cape High Court’s decision is that the courts have so far been persuaded that an impeached judge’s participation in the judicial appointment process may cause irreversible harm to the credibility of the entire process.

The upshot of the Western Cape High Court’s decision is that the courts have so far been persuaded that an impeached judge’s participation in the judicial appointment process may cause irreversible harm to the credibility of the entire process. In that situation, courts will step in to protect the integrity of the process (or at least to prevent further harm).While there are likely to be vigorous debates on whether the court trespassed into the domain of Parliament, it is clear from the judgment that courts take seriously any threat to the judiciary’s dignity and reputation.

By Mbekezeli Benjamin

Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at UCT Law Faculty that monitors the judiciary in South Africa.

This article was first published on Daily Maverick on 27 September 2024