Democratic Alliance v Hlophe and Others (16170/24 ; 16463/2024 ; 16771/2024) [2025] ZAWCHC 234 (2 June 2025)
REPUBLIC
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
Number: 16170/24
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER
JUDGES: YES
(3) REVISED: YES
DATE: 2 June 2025
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Judgment handed down
electronically by circulation to the parties’ legal
representatives via email, and released to SAFLII
and by uploading it
on CaseLines. The date and time for hand down is deemed to be 10:00
on 2 June 2025.
Constitution
– section 178(1)(h) – distinction
between nomination and designation – National Assembly has
discretionary powers to designate representatives –
an
impeached judge who continues to undermine the judiciary is not a fit
and proper candidate to serve on the Judicial Services
Commission.
JUDGMENT
Mbhele
AJP,
Basson
and Mudau
JJ: (THE COURT)
The
Constitutional Court in Helen
Suzman Foundation v Judicial Service Commission[1]
stated –
“[32] The
importance of the judiciary in our constitutional democratic project
cannot be overemphasised:
‘The judiciary is
essential to the maintenance of constitutional democracy. By
exercising judicial control over governmental power
and keeping it
within its constitutional bounds, the judiciary is able to hold the
legislature and executive to account in the
courts and thus secure
the rule of law and the protection of human rights.”[2]
Introduction
[1]
On 21
February 2024, Dr Mandlakayise John Hlophe (“Dr Hlophe”)[3]
became the first judge in democratic South Africa to be removed from
office by the National Assembly (“NA”) for gross
misconduct in that he attempted to interfere with the administration
of justice by attempting to influence two Constitutional Court
judges
(Justice Nkabinde and Acting Justice Jafta) to decide a pending
matter in favour of former President Jacob Zuma, thereby
violating
their oaths of office. This was also the first time in our
constitutional history that the NA was called upon to exercise
its
powers under 177(1)(b) of the Constitution of the Republic of South
Africa.[4]
[2]
The
events culminating in the removal of Dr Hlophe are a matter of public
record and need not be recounted in detail. It suffices
to briefly
outline certain background facts relevant to the matter before this
Court.[5]
[3]
The
Judicial Services Commission (“JSC”) referred a complaint
lodged by all the Justices of the Constitutional Court,
led by Chief
Justice Langa and Deputy Chief Justice Moseneke, to its Judicial
Conduct Tribunal (“JTC”).[6]
[4]
Upon
consideration, the JTC[7]
concluded in its Tribunal Decision that Dr Hlophe was guilty of gross
misconduct, finding that his conduct breached section 165
of the
Constitution in that Dr Hlophe had, “improperly
attempted to influence the two Justices of the Constitutional Court
to violate their oaths of office”. It further
concluded that Dr
Hlophe’s conduct “seriously threatened and interfered
with the independence, impartiality, dignity
and effectiveness of the
Constitutional Court”, and “threatened public confidence
in the judicial system.”[8]
[5]
Pursuant
to section 20 of the Judicial Service Commission Act,[9]
the JSC considered the JCT’s report and conclusions. By a
majority vote, the JSC concurred with the Tribunal’s findings
and concluded that Dr Hlophe’s conduct constituted gross
misconduct as contemplated in section 177(1)(a) of the Constitution.
The JSC further found that Dr Hlophe’s conduct amounted to an
attempt to defeat or obstruct the administration of justice,
which
seriously interfered with the judiciary’s constitutionally protected
independence.
[6]
On 21 February 2024, the NA resolved, by an
overwhelming majority, to remove Dr Hlophe from judicial office for
gross misconduct.
[7]
Finally, on 1 March 2024, after a 16-year
protracted legal process costing the taxpayer approximately R10
million, the President
of the Republic removed Dr Hlophe from office
in terms of section 177 of the Constitution.
[8]
Dr Hlophe then joined the Umkhonto Wesiswe Party
(“MK”), which is the official opposition, as the DA
entered the Government
of National Unity. The Democratic Alliance
(“DA”) says it reserves the right to challenge the
process by which Dr Hlophe
was made an MP in a separate process, but,
for purposes of this matter, the DA accepts that Dr Hlophe was
lawfully elected to the
NA.
[9]
On 9 July 2024, the NA designated six Members of
Parliament (“MPs”), which included Dr Hlophe, to serve on
the JSC in
terms of section 178(1)(h) of the Constitution. It is this
designation that forms the basis for the current dispute. We shall
return
to a more detailed analysis of the interpretation of this
section.
The parties
[10]
There
are four[10]
applications
challenging the lawfulness of the designation of Dr Hlophe, three of
which are before this Court –
(a)
Democratic Alliance v Hlophe and Others (“the
DA application”).
(b)
Freedom Under Law (RF) NP v Speaker and Others
(the “FUL application”).
(c)
Corruption Watch v Speaker of the National
Assembly and Others (“the Corruption Watch application”).
The applicants
[11]
The DA is the applicant in case no. 16170/2024 and is a registered
political party holding
87 seats in the NA. The applicant in case no.
16771/2024 is Corruption Watch NPC (“Corruption Watch”),
a non-profit
company incorporated in accordance with the laws of the
Republic of South Africa. The applicant in case no. 16463/2024 is
Freedom
Under Law NPC (“FUL”), a non-profit company
incorporated and registered in terms of section 21 of the Companies
Act.[11]
[12]
Dr Hlophe and MK complained that Corruption Watch
acted inappropriately in instituting a separate application, alleging
that this
constituted an unsustainable abuse of process. Corruption
Watch disputes this allegation, asserting that it maintains no
political
or business alignment, and that joining forces with the DA
as a co-applicant would have been inconsistent with its mandate and
purpose. We agree. First, Corruption Watch advances additional
grounds of review that the DA does not pursue. Second, it would not
have been appropriate for Corruption Watch to intervene in the
proceedings brought by FUL, given that Corruption Watch sought
interim relief pending the outcome of the present review (Part B),
whereas FUL sought final relief from the outset. Third, none
of the
opposing respondents has demonstrated any prejudice or inconvenience
to the Court arising from Corruption Watch’s
decision to
proceed by way of a separate application.
The
Respondents
[13]
Although their citations differ in the different
applications, the following respondents are cited in all three
applications: (i)
Dr Mandlakayise John Hlophe (“Dr Hlophe”),
a former Judge of the High Court and the former Judge President of
this
Division who is currently a member of the political party
Umkhonto Wesizwe (“MK”). (ii) The Speaker of the National
Assembly (“the Speaker”), cited in her official capacity
as the representative of the NA. In each of the three matters
before
us, the Speaker filed an explanatory affidavit outlining the basis of
her non-opposition and made written and oral submissions
before this
Court. The Speaker has adopted a neutral stance and indicated that
she abides by the decision of this Court and submitted
that no order
should therefore be made against the NA. (iii) The Judicial
Services Commission (“JSC”). No relief is sought against
the JSC – it is cited solely for any interest
it may have in the
matter. The JSC also filed a notice to abide. (iv) Umkhonto Wesizwe
(“MK”), a political party represented
in the NA, is cited
on the basis that it nominated Dr Hlophe to be designated to serve on
the JSC. (v) The remaining respondents
are the 16 political parties
represented in the NA cited for any interest they may have in these
proceedings. No relief is sought
against those political parties.
Only Dr Hlophe and the MK party oppose this application.
Litigation history
Full Court: Part A
[14]
On 27 September 2024, three urgent, unconsolidated
applications were brought by the DA (case no: 16170/24), Corruption
Watch (case
no: 16771/2024), and FUL (case no: 16463/24), challenging
the NA’s decision to designate Dr Hlophe as one of its six
representatives
on the JSC in terms of section 178(1)(h) of the
Constitution. They were heard simultaneously by a Full Court (Baqwa,
Daffue, and
Collis JJ).
[15]
The DA and Corruption Watch sought interim relief
under Part A of their applications, interdicting Dr Hlophe from
participating
as a member of the JSC pending the outcome of Part B
(the present proceedings). FUL sought final relief through judicial
review,
seeking an order: first, declaring the NA’s decision
unconstitutional and invalid; and second, reviewing and setting aside
the decision and remitting the matter to the NA for reconsideration.
The relief sought by the DA and Corruption Watch is broader
in scope
than that sought by FUL.
[16]
The
Full Court granted the interim interdicts sought by the DA and
Corruption Watch and postponed FUL’s application.[12]
In its order, the Court directed that FUL’s application be
heard simultaneously with Part B of the DA and Corruption Watch
applications.
Preliminary issues
Locus Standi (DA, FUL
and Corruption Watch)
[17]
Dr Hlophe and MK took issue with the applicants’
standing to bring these applications. Specifically, they claim that
Corruption
Watch does not have standing to bring this review and they
repeat its challenge to FUL’s standing as it did in Part A. MK
also claims that the various applications were nothing more than an
abuse of process, in that the applicants have instituted the
present
proceedings without legitimate intentions.
[18]
The DA
disputes these allegations and submits that the DA is committed to
the rule of law and to upholding of South Africa’s democratic
Constitution. The DA brings this application in its own interest, its
members’ interests, and the public interest. In Democratic
Alliance v The Acting National Director of Public Prosecutions,[13]
the
SCA held
that, because political parties represent the public, they are
obliged to ensure that institutions such as the National Prosecuting
Authority (and, by implication, the NA) act in accordance with
constitutional and legal prescripts, and to engage in litigation
where there is a failure to do so.
[19]
Corruption
Watch referred to its Memorandum of Incorporation and submitted that
its mandate is to combat corruption and promote
transparency,
integrity, and accountability within the private and public sectors.
Similar to the DA, Corruption Watch instituted
this application in
its own interest in terms of section 38(a) of the Constitution. In
addition, the application was brought in
the public interest, as
contemplated in section 38(d) of the Constitution, given the
undeniable public interest in the composition
and functioning of the
JSC.[14]
[20]
FUL
explains that it brought this application in its own interest and in
the public interest. FUL points out that its purpose is,
amongst
others, to promote democracy under the law, advance the understanding
and respect for the rule of law and the principle
of legality, and
secure and strengthen the independence of the judiciary. As part of
this mandate, it monitors the judiciary and
the courts as the primary
promoters and protectors of the rule of law within South Africa’s
constitutional democracy. In Hlophe
v Freedom Under Law in re: Freedom Under Law v Hlophe; Moseneke and
Others v Hlophe in re: Hlophe v Judicial Services Commission
and
Others,[15]
the Full Court held that Dr Hlophe’s objections to FUL’s standing
were “meritless”, “misconceived” and “in
the
face of common sense”.
[21]
By necessary implication, these findings extend to the objections
raised by Dr Hlophe and the
MK Party against the DA and Corruption
Watch in the present matters.
[22]
The
common-law requirements for legal standing have been substantially
broadened by section 38 of the Constitution.
Section
38 of the Constitution of South Africa gives people the right to take
legal action if they believe their rights in the Bill
of Rights have
been violated. In Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others,[16]
O’Regan J described the courts’ new role in a
constitutional democracy as follows:
“[t]his
role requires that access to the courts in constitutional matters
should not be precluded by rules of standing developed
in a different
constitutional environment in which a different model of adjudication
predominated. In particular, it is important
that it is not only
those with vested interests who should be afforded standing in
constitutional challenges, where remedies may
have a wide
impact.”[17]
[23]
In concluding that the applicants have legal standing to bring these
applications, we have
also taken note of the view of the
Constitutional Court in Albutt
v Centre for the Study of Violence and Reconciliation and Others,[18]
wherein
it was confirmed that a much broader approach to legal standing is
taken, particularly when it comes to the violation of
rights in the
Bill of Rights. We
are therefore satisfied that the applicants have demonstrated that
the interests of justice and considerations of public interest
justify this Court’s scrutiny of the impugned decision. Furthermore,
considerations of expediency require that the matter be heard
and
determined by this Court without delay. In the premises, all three
applicants have the requisite standing to bring these applications,
both in their individual capacity and in the public interest.
Is the dispute still
alive?
[24]
On 6 October 2024, Dr Hlophe resigned from the
JSC, raising the question whether the issues before this Court are
still alive.
[25]
According to FUL, the issues now before court in
the review application remain alive notwithstanding Dr Hlophe’s
resignation.
FUL submits that the NA has followed an incorrect and
unlawful practice which fettered the discretion afforded to the NA
when it
designated Dr Hlophe without exercising a discretion
regarding his suitability to serve as a member of the JSC.
[26]
The Speaker agrees that the matter remains alive and relevant,
notwithstanding Dr Hlophe’s
resignation. She points out that
the NA has not yet designated an alternate to replace Dr Hlophe and
that the NA is still responsible
for designating an additional member
to the JSC from among the ranks of opposition parties. She also
accepts that any future debate
regarding the suitability of a nominee
must be guided by a proper interpretation of section 178(1)(h) of the
Constitution. She
accordingly welcomes judicial clarity on the
meaning and scope of this provision, particularly as it pertains to
the requirement
of “suitability” of MP’s designated
under it. She also emphasises that such clarity is crucial, given the
likelihood
of further litigation arising from the NA’s future
designation of Dr Hlophe, which the MK Party has already indicated it
intends to do. Dr Hlophe also agrees that his
resignation does not have any bearing on the issues raised in Part B
and that the issues remain alive
for adjudication.
[27]
We are satisfied that the matter is not moot. The
fact that Dr Hlophe is no longer a member of the JSC means, as
pointed out by
the Speaker, that a further designation will need to
occur in the future. Any future designation process by the NA must
take place
with this Court’s guidance on whether the NA had a
discretion to consider the fitness of a nominee for designation in
terms
of section 178(1)(h) of the Constitution and whether it had
acted lawfully or unlawfully when it designated Dr Hlophe for
appointment
to the JSC without exercising such discretion. Without
such guidance, the NA risks repeating an unconstitutional process
that not
only undermines the integrity of the JSC but ultimately the
legitimacy of the judiciary itself.
The
dispute
[28]
The matter before us concerns two narrow
questions:
(a)
Firstly, whether NA properly exercised its right
and duty to consider whether Dr Hlophe was suitable for designation
to the JSC.
(b)
Secondly, is Dr Hlophe, who had just recently been
removed from the judicial office for gross misconduct and continues
to denigrate
and denounce the judicial system, suitable to be
appointed to the JSC.
[29]
This matter does not concern whether a person
removed as a judge may sit as an MP, nor whether an impeached judge
could never serve
on the JSC in any circumstances. It focuses on the
peculiar facts surrounding Dr Hlophe’s designation as a member of the
JSC.
[30]
The
applicants submit that the NA’s decision to designate amounts
to administrative action under the Promotion of Administrative
Justice Act (PAJA).[19]
Although the relief sought by the parties differs, they all rely on
the following grounds of review:
(a)
The NA committed a material error of law: It
failed to properly exercise its discretion under section 178(1)(h) of
the Constitution
when it designated Dr Hlophe to serve on the JSC,
acting on the mistaken belief that his position as an MP and his
nomination by
the MK Party compelled his designation. In fact, the NA
did not realise that it had discretion at all.
(b)
In designating Dr Hlophe to the JSC, the NA
ignored and undermined the constitutional duty placed on it by
section 165(4) of the
Constitution to protect the integrity and
legitimacy of courts. Not only will the public’s respect for the
judiciary be affected
by Dr Hlophe’s appointment, but his
designation also constitutes an attack on our constitutional
democracy as a whole.
(c)
The NA considered various irrelevant
considerations and failed to consider relevant and material factors
in reaching its decision.
In particular, it proceeded on the
erroneous assumption that all MPs are inherently suitable and
eligible for designation to the
JSC, and that the Constitution
imposes no specific criteria applicable to a nominee regarding their
fitness to serve on the JSC.
(d)
The decision to designate Dr Hlophe – a judge
recently impeached for gross misconduct – is unreasonable and
irrational. The purpose
of the JSC is to foster public confidence and
respect for the judiciary and the rule of law. Designating an
impeached judge who
has demonstrated a complete disregard for the
judiciary’s integrity, to participate in appointing judges undermines
this purpose.
We return to a more detailed consideration of each of
these grounds.
The orders sought
[31]
Amplified
by the joint minute, the DA seeks two orders: In its amended notice
of motion, the DA seeks a review of the decision by
the NA to
designate Dr Hlophe as one of its representatives to the JSC. The DA
further seeks a declaration that the NA may not
designate Dr Hlophe
to serve on the JSC. The DA further seeks a punitive costs award
against Dr Hlophe and MK considering the unjustifiable
and scandalous
attacks on the DA and this Court.[20]
In its application, FUL seeks a review of the NA’s decision to
designate Dr. Hlophe as one of its representatives for the JSC.
FUL
also seeks a declaration that the NA may not designate Dr. Hlophe to
serve on the JSC and an order remitting the matter back
to the NA for
reconsideration. Similarly, Corruption Watch seeks a review of the
decision by the NA to designate Dr. Hlophe as
one of its
representatives to the JSC. Like the DA and FUL, Corruption Watch
seeks a declaration that the NA may not in the future
designate Dr.
Hlophe to serve on the JSC.
[32]
On 10
December 2024, Corruption Watch filed a Notice of Application (to the
extent necessary) that its non-compliance with rule
28 of the Uniform
Rules of Court is condoned and that it be granted leave to amend Part
B of its Notice of Motion. The supplementary
relief now sought by
Corruption Watch is for a declarator that the NA cannot designate Dr
Hlophe to sit on the JSC.[21]
[33]
Dr Hlophe does not object to the admission of
Corruption Watch’s supplementary affidavit and does not oppose
the introduction
of additional relief being sought. He does, however,
oppose the grant of the relief itself.
[34]
MK claims that it is prejudiced by the
supplementary affidavit and amended relief. However, its contention
that Corruption Watch
failed to seek condonation for non-compliance
with rule 28 is incorrect. We are not persuaded that MK has suffered
any prejudice.
The allegations contained in Corruption Watch’s
founding affidavit have been available to MK since 30 July 2024, and
an adequate
opportunity has been provided to address both the
supplementary affidavit and the amended relief now sought.
Accordingly, the Notice
of Application dated 10 December 2024 is
granted.
Designation of Dr
Hlophe to the JSC in terms of section 178(1)(h) of the Constitution
[35]
The Speaker explains how the process of
designation unfolded. In 2024, in exercising its powers in terms of
section 178 of the Constitution,
the NA determined which parties were
entitled to representation on the JSC. It determined that the ANC was
entitled to two representatives
on the JSC, the DA one, MK one, the
EFF and ActionSA also with one representative each. Once political
parties have submitted their
nominations, the NA will then proceed to
the process of designation in terms of section 178(1)(h) of the
Constitution. Section
178(1)(h) of the Constitution is located in
Chapter 8 of the Constitution and deals with “Courts and
Administration of Justice”.
It reads as follows:
“There
is a Judicial Service Commission consisting of –
…
(h) Six persons
designated by the National Assembly from among its members, at least
three of whom must be members of opposition
parties represented in
the Assembly”.
[36]
A clear distinction must therefore be drawn
between the nomination and designation processes. The former is a
purely political process,
whereas the latter is a process whereby the
NA exercises public power conferred on it in section 178(1)(h) of the
Constitution
to designate for appointment to the JSC. In doing so,
the NA must act reasonably and rationally. Whereas no party takes
issue with
the principle that Dr Hlophe was not barred from
nomination and
that no specific criteria are set for an MP to be nominated by a
political party, we disagree with the Speaker’s contention
that
no specific “fit and proper” criteria apply to a
designee.
Designation process
[37]
The
Speaker explains that the designation of nominees to serve on the JSC
is conducted in accordance with the Rules of the National
Assembly.
The General Rules govern motions placed before the NA for a
decision.[22] A motion passes
by way of majority support by the political party, as is standard
practice in a democratic Parliament. She explains
that nominations of
MPs by their respective political parties are usually an uncontested
and uneventful process, and, until these
court proceedings, a motion
of designation in terms of section 178(1)(h) of the Constitution has
never been challenged.
DA Objection
[38]
When
Dr Hlophe was nominated, the NA, for the first time, received
objections, both internally and externally. The DA,[23]
objected thereto as follows:
“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.
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.
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.
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.
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”.[24]
[39]
The DA thus relied on two points:
(a)
Firstly, the decision to designate a nominee to
serve on the JSC is not merely a political one but
the exercise of public power aimed at contributing to the
establishment of the JSC. The NA is therefore required to act
reasonably
and rationally. The DA contended that the decision to
designate Dr Hlophe just months after the NA had impeached him, was
not rational.
(b)
Secondly, the DA contended that there was a real
risk that, if Dr Hlophe were designated to serve on the JSC, many
applicants to
be interviewed by the JSC would object and apply for
the recusal of Dr Hlophe. This may potentially disrupt the interview
conducted
by the JSC and result in endless review processes.
MK and Dr Hlophe’s
response regarding the designation
[40]
The arguments raised in favour of the designation
of Dr Hlophe were the following:
(a)
MK and the EFF submitted that Dr Hlophe is
eminently qualified to serve on the JSC because he has a doctorate in
law and had served
as a judge.
(b)
The Constitution does not provide specific
qualification criteria for designation to the JSC other than being a
member of the NA.
MK reasoned that –
“The
Constitution does not contain an inherent qualification requirement
for members to sit on the JSC. Since members who qualify
to be
appointed to the JSC are already members of parliament and therefore
bound by their oath of office. The Constitution, in
its wisdom, does
not regulate the qualification of members to sit in the JSC. The
existing Constitution’s scholarship on
the makeup of the JSC
endorses the appointment of politicians to the JSC.”[25]
[41]
The MK relied on established Rules and Practices
of Parliament and contended that the NA cannot deviate from the
existing practice
without an amendment to the Constitution or the
NA’s Rules.
External objections
[42]
FUL
and other non-governmental organisations,[26]
also raised similar objections. In response, the Speaker stated as
follows:
“I have taken note
of the contents of your correspondence. As you will be aware, Section
178(1)(h) of the Constitution (1996)
requires that the composition of
the JSC must include ‘six persons designated by the National
Assembly from among its members,
at least three of whom must be
members of opposition parties represented in the Assembly’. The
Constitution therefore only
includes two requirements in relation to
the designation of persons by the Assembly: firstly, that the person
be a member of the
Assembly and, secondly, that half of the persons
so designated be drawn from the opposition benches. There are no
further criteria.
In the context above, it
should be noted that there is no specific requirement that a member
of Parliament be ‘fit and proper’. This is no
doubt in part because the inclusion of public representatives on the
JSC is premised on the fact that these persons represent
the
electorate rather than because of any special or specific expertise
or capabilities, as is the case with other legal experts
and members
of the judiciary, who serve on-the JSC. In the matter at hand, Dr
Hlophe is a duly sworn in member of the Assembly
who is
lawfully occupying a seat in Parliament. In addition, as a member of
the uMkhonto Wesizwe Party (MK), he is also a member
of the
opposition. For the reasons expressed, there is no legal impediment
which would prevent Dr Hlophe from serving on the JSC.
Notwithstanding the
above, members of Parliament are duty bound to act in an ethical
manner. Clause 4 of Schedule 2 of the Constitution
requires all
members to take an oath or solemnly affirm their faithfulness to the
Republic of South Africa, their commitment to
respect, obey and
uphold the Constitution and to perform their functions to the best of
their ability. Furthermore, members of
Parliament must comply with
the Code of Ethical Conduct and Disclosure of members’
Interests for Assembly and Permanent Council Members (‘Ethics
Code’).
Ultimately,
the decision to designate Dr Hlophe, or any other member, to the JSC
will rest with the collective of the National Assembly”.
[43]
Three points emerge from the Speaker’s
response:
(a)
There is no restriction on who may be nominated from the
ranks of MPs
for designation to serve on the JSC. The only criterion for
nomination is that the nominee must be an MP.
(b)
There is no specific “fit and proper”
criterion for a designee.
(c)
The ultimate decision rests with the collective of
the NA.
[44]
These points will be addressed in more detail, as
they go to the heart of the matter.
Designation on 9 July
2024
[45]
On 9 July 2024, despite the objections of the DA
and other external parties and following previous parliamentary
practice in terms
of which nominees were merely designated without
question, the NA voted in support of the motion to designate all six
nominees,
including Dr Hlophe, to serve on the JSC in terms of
section 178(1)(h) of the Constitution. Only the DA, the FF+, and the
ACDP
voted against Dr Hlophe’s designation.
[46]
On the facts before us, the NA had failed to
appreciate that it had the discretion to designate and therefore
failed to exercise
that discretion. The NA merely acted in accordance
with established parliamentary practice, whereby all nominations were
accepted.
It should also be pointed out that, while it may have been
the established practice of the NA in the past to accept nominations
submitted by political parties, the practice developed in a context
in which no nominated MP had previously been removed from judicial
office for misconduct. The circumstances surrounding this particular
nomination were, therefore, unique and exceptional.
Rules of NA
[47]
Regarding the role of the relevant Rules of the
NA, the Speaker explains that there was a departure from the previous
convention
of simply accepting the nominations to the extent that the
designation of Dr Hlophe was put to a vote. The NA was divided, with
some MPs expressing the view that the suitability of a nominee
(regardless of academic qualifications) for the task of serving
on
the JSC was pertinent, whilst others took the view that there was no
bar to any member of the NA being designated to the JSC.
The majority
then voted in favour of his designation, and the motion carried.
[48]
Both MK and Dr Hlophe rely on the fact that his
nomination followed an established practice – allegedly
provided for in the
Rules of the NA – whereby nominations by
political parties were accepted as a matter of course. MK contends
that Corruption Watch
should have challenged what it contends is an
“unwritten rule” of the NA.
[49]
We disagree as this submission loses sight of Rule
9(2) of the Rules of the NA, which states that –
“Conventions
and practices must be consistent with the provisions of the
Constitution, these rules, orders of the House, rulings,
and
directives and guidelines of the Rules Committee.”
[50]
The interpretation of the convention/practice
advanced by MK and Dr Hlophe is plainly inconsistent with the
provisions of section
178(1)(h) of the Constitution, which requires
the NA to independently exercise its discretion in determining whom
to designate
to the JSC. The NA may not abdicate this constitutional
responsibility by simply deferring to the dictates of a political
party,
as occurred in the present case.
[51]
Dr
Hlophe also says the NA has “exclusive cognisance” or
“exclusive jurisdiction over how its proceedings are
to be
conducted, and the conduct of these proceedings is not subject to
examination elsewhere”. Corruption
Watch correctly submits that this argument is fundamentally flawed.
The NA has failed to discharge its constitutional
responsibility. The
designation of Members of Parliament to the JSC is not a mere
internal process of the NA; it constitutes a
public decision with
significant constitutional implications. Such a designation directly
affects the composition of the JSC, which
plays a pivotal role in
appointing judges and, by extension, safeguarding the integrity and
independence of the judiciary. In
any event, Dr Hlophe’s contention is wrong as a matter of law.
Under our Constitutional order, the lawfulness of Parliament’s
proceedings is subject to judicial review. Our Courts have set aside
the proceedings of Parliament on numerous occasions.[27]
[52]
However, whether such a practice or convention is
valid regarding the appointment of Parliamentary committees generally
is irrelevant
to this case. In any event, the JSC is not
a Parliamentary committee – it is a body
established by the Constitution, consisting of members from several
different sources,
and not only from members of parliament.
Section 178(1)(h) of
the Constitution
[53]
The interpretation of section 178(1)(h) goes to
the heart of the matter. The Speaker is correct that nothing in the
wording of section
178(1)(h) of the Constitution specifically
constrains the power of the NA to designate other than to require
that half of the members
must be from opposition parties. Conversely,
nothing in this section prescribes that the NA must merely designate
whichever MPs
the various political parties nominated. The power to
designate is afforded to the NA, not political parties. The power to
designate
does not permit the NA to act as a mere rubber stamp for
nominations advanced by political parties, which the NA readily
conceded.
[54]
Despite accepting that the role of the NA under
section 178(1)(h) of the Constitution is not to merely “rubberstamp”
a nomination by any one political party, this is precisely what
occurred. The facts show that the NA laboured under the mistaken
belief that it had no choice but to follow the NA Rules and that the
Constitution left them with no choice but to designate (in
other
words, “rubberstamp”) those nominated by the various
political parties.
[55]
The NA
may not abdicate to any other person, body, or political party (as it
has done in this matter) its power to designate members
to the JSC.
In Hofmeyr
v
Minister of Justice and Another,[28]
the court made it clear that an official vested with a discretionary
power may not abdicate a discretionary power:
“[A]
discretionary power vested in one official must be exercised by that
official (or his lawful delegate) and that, although where
appropriate he may consult others and obtain their advice, he must
exercise his own discretion and not abdicate it in favour of
someone
else; he must not … ‘pass the buck’ or act under
the dictation of another and, if he does, the decision
which flows
therefrom is unlawful and a nullity.”
[56]
The power to designate is constrained only by the
Constitution and other provisions and principles in the Constitution.
They are
the following:
(a)
The NA must act rationally. This is a requirement
of the principle of legality. Rational action must be rationally
connected to
the purpose for
which the power is exercised.
(b)
Section 165(4) of the Constitution clearly
requires that the NA “must assist and protect the courts to
ensure the independence,
impartiality, dignity, accessibility and
effectiveness of the courts.”
(c)
The NA must act lawfully. If it acts based on a
material error of law, it acts unlawfully and contrary to the
principle of legality.
Section 165 of the
Constitution
[57]
Section 178(1)(h) must be read with due regard to
the powers conferred on the courts and the obligations placed on
organs of state
in terms of section 165 of the Constitution.
[58]
Section
165 entrusts the courts with considerable power and responsibility:
Judges have the power to develop, interpret, and apply
the law and
declare laws passed by Parliament and the executive’s conduct
unconstitutional.[29] This
section further affirms the independence and impartiality of the
courts and provides for the institutional protection for
all
courts.[30]
In
terms of section 165(4) of the Constitution, Organs of State, such as
the NA, are constitutionally required to assist and protect
the
courts to ensure their independence, impartiality, dignity,
accessibility, and effectiveness. It follows that a decision of
the
NA will be unlawful and unconstitutional if it runs against the
requirements in section 165(4). This section reads as follows
in
relevant part:
“(1)
The judicial authority of the Republic is vested in the courts.
(2) The courts are
independent and subject only to the Constitution and the law, which
they must apply impartially and without fear,
favour or prejudice.
(3) No person or organ of
state may interfere with the functioning of the courts.
(4)
Organs of state, through legislative and other measures, must assist
and protect the courts to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts.[31]
(5) An order or decision
issued by a court binds all persons to whom and organs of state to
which it applies”.
The Judicial Services
Commission
[59]
A
strong and independent judiciary, as contemplated by section 165 of
the Constitution, is vital to maintaining our constitutional
democracy.[32]
The
JSC is established in terms of section 178 of the Constitution as the
constitutional body responsible for recommending judicial
candidates
for appointment (and removal) by the President.[33]
As such, it fulfills a function of “singular importance”.[34]
[60]
Section
178 of the Constitution provides for a broadly-based selection panel
that will provide a check and balance to the executive’s
power to
make such appointments. The composition of the JSC as prescribed by
section 178 is thus deliberately designed
to promote the democratic legitimacy and effectiveness of the courts
within our legal system of separation of powers with
checks and
balances.[35]
This
was also confirmed by the Full Court in Hlophe
v Judicial Service Commission:[36]
“[32] It is true
that section 178 was crafted with obvious care. As noted in Premier
(WCC):
“. . . [I]t is
clear to me that the JSC has been constructed in a structured and
careful manner.
. . . The Constitution
gives its considered attention to persons who sit on the JSC when it
is called upon to determine, inter alia, matters relating to
judicial misconduct.”
And in JSC v Cape Bar
(SCA), the SCA stated that:
“I believe it is
clear from section 178 of the Constitution that the JSC has been
created in a structured and careful manner.””[37]
[61]
Public
confidence in the judiciary’s composition and administration of
justice is vital. This was emphasised by the Constitutional
Court in
Van
Rooyen[38]
as
follows:
“[32]
That the appearance or perception of independence plays an important
role in evaluating whether courts are sufficiently independent
cannot
be doubted. The reasons for this are made clear by the Canadian
jurisprudence on the subject, particularly in Valente
v The Queen where
Le Dain J held that:
‘Both
independence and impartiality are fundamental not only to the
capacity to do justice in a particular case but also to individual
and public confidence in the administration of justice. Without
that confidence the system cannot command the respect and acceptance
that are essential to its effective operation.
It is, therefore, important that a tribunal be perceived as
independent and impartial, and that the test for independence
should
include that perception.’ [39]
The jurisprudence of the
European Court of Human Rights also supports the principle that
appearances must be considered when dealing
with the independence of
courts.”
[62]
In
similar terms, the Constitutional Court in Glenister
v President of the Republic of South Africa and Others[40]
referring to its decision in Van
Rooyen,[41]
emphasised the importance of public perception and confidence in the
independence of the judiciary:
“This
Court has indicated that ‘the appearance or perception of
independence plays an important role’ in evaluating whether
independence in fact exists. This was said in connection with the
appointment procedures and security of tenure of magistrates.
By
applying this criterion we do not mean to impose on Parliament the
obligation to create an agency with a measure of independence
appropriate to the judiciary. We say merely that public confidence in
mechanisms that are designed to secure independence is indispensable.
Whether a
reasonably informed and reasonable member of the public will have
confidence in an entity’s autonomy-protecting features
is
important to determining whether it has the requisite degree of
independence. Hence, if Parliament fails to create an institution
that appears from the reasonable standpoint of the public to be
independent, it has failed to meet one of the objective benchmarks
for independence. This is because public confidence that an
institution is independent is a component of, or is constitutive of,
its independence.”
Appointment criteria
for judges
[63]
To
fulfil its constitutional mandate to safeguard our constitutional
democracy and to promote a strong and independent judiciary,
the JSC
must ensure that only suitably qualified, fit, and proper individuals
are appointed to judicial office.[42]
The relevant part of section 174 reads as follows:
“(1)
Any appropriately qualified woman or man who is a fit and proper
person may be appointed as a judicial officer. Any person to
be
appointed to the Constitutional Court must also be a South African
Citizen.
(2) The need for the
judiciary to reflect broadly the racial and gender composition of
South Africa, must be considered when judicial
officers are
appointed.”
[64]
The
legitimacy of the judicial appointment process is further integral to
the judiciary’s moral authority and integrity, and
maintaining
public confidence in the institution.[43]
To this end, commissioners must rigorously assess each candidate’s
fitness and propriety, including their integrity, dignity,
humility,
judgment, character, honesty, and trustworthiness.
[65]
The NA’s means of achieving the purpose
behind the appointment of judges was to designate Dr Hlophe as a
member of the JSC.
Appointment criteria
for commissioners
[66]
One of the issues in dispute is whether the “fit
and proper” criteria are applicable to the designation for
appointment
to the JSC from among MPs to serve on the JSC.
[67]
We have referred to the view articulated by the
Speaker, Dr Hlophe, and MK that, apart from the requirement that a
designee must
be drawn from MP’s, there are no further
criteria, and more specifically, no requirement, on a proper
interpretation of section
178(1)(h), that a designee must be “fit
and proper”. Dr Hlophe also insists that, for as long as he
remains a member
of the NA, he is entitled to be nominated to serve
on the JSC. MK has also unequivocally stated that it has no intention
of replacing
Dr Hlophe as its designated member to the JSC.
[68]
Even
if section 178 (1) (a) – (k) of the constitution does not
explicitly prescribe to the NA that members to
be designated to
the JSC must be “fit and proper,” we are enjoined to
interpret constitutional provisions
in a manner that promotes the
values of an open and democratic society based on human dignity,
equality and freedom.[44]
Additionally, we have to consider principles such as the rule
of law, integrity, and public trust. Chief
Justice Dickson of the Canadian Supreme Court remarked as follows in
Hunter
et al. v. Southam Inc.[45]
when dealing with interpretation of constitutional provisions:
“The
task of expounding a constitution is crucially different from that of
construing a statute. A statute defines present rights
and
obligations. It is easily enacted and as easily repealed. A
constitution, by contrast, is drafted with an eye to the future.
Its
function is to provide a continuing framework for the legitimate
exercise of governmental power and, when joined by a Bill
or a
Charter of rights, for the unremitting protection of individual
rights and liberties. Once enacted, its provisions cannot
easily be
repealed or amended. It must, therefore, be capable of growth and
development over time to meet new social, political
and historical
realities often unimagined by its framers. The judiciary is the
guardian of the Constitution and must, in interpreting
its
provisions, bear these considerations in mind.
Professor
Paul Freund expressed this idea aptly when he admonished the American
courts “not to read the provisions of the
Constitution like a
last will and testament lest it become one. ”
[69]
The
question whether ‘fit and proper’ criteria are applicable
was addressed in Helen
Suzman Foundation[46]
by
Madlanga J with reference to section 178(1)(a) – (k) of the
Constitution. He emphasised the importance of ensuring that
those
entrusted with the responsibility of nominating and designating
individuals for membership of the JSC approach this task
with the
requisite seriousness and diligence. Madlanga J had no difficulty in
holding that the obligation to appoint only individuals
who are
“suitably qualified for the position” as judges equally
applies to those entrusted with “nominating, designating,
or
electing” individuals for membership of the JSC. He also
cautioned that rules that threatened the ability to appoint the
best
candidates as judges “would have serious consequences for the
judiciary and, consequently, our constitutional democracy
as a
whole”:[47] The
Constitutional Court held that:
“[36]
In order to assess the impact of the disclosure of deliberations on
the selection process properly, it is worth having a close
look at
who make up the JSC. Some become members of the JSC by virtue
of the office they hold. These are the Chief Justice,
the
President of the Supreme Court of Appeal, the Cabinet member
responsible for the administration of justice, and – when
the JSC is considering matters relating to a specific division of the
High Court – the Judge President of that
division and
the Premier of the province concerned. The remaining members are
nominated, designated or elected by a variety of
bodies and the
President. They are: one Judge President designated by the Judges
President; two practising advocates nominated
from within the
advocates’ profession; two practising attorneys nominated from
within the attorneys’ profession; one
teacher of law designated
by teachers of law at South African universities; six persons
designated by the National Assembly
from amongst its members;
four permanent delegates to the National Council of Provinces with a
supporting vote of at least six
provinces; four persons designated by
the President as head of the national executive, after consulting the
leaders of all the
parties in the National Assembly. All those who
are nominated – and not designated or elected – are
appointed by the President.
[37] Since courts play a
crucial role in our constitutional democracy, without doubt the JSC’s
function of recommending appointments
to the senior judiciary is of
singular importance. Bearing
in mind the importance of this function, I do not think it
unreasonable to expect that those that bear the responsibility
of
nominating, designating or electing individuals for membership of the
JSC will take their responsibility seriously and identify
people who
are suitably qualified for the position.
Of course, we cannot be blind to some bad appointments to a variety
of senior positions that we have witnessed in litigation that
has
come before the courts. But that is not reason enough to make
an assumption that the JSC may well be saddled with bad
appointments.
As for those whom the Constitution has identified for membership by
virtue of their office, I cannot second-guess
the framers of the
Constitution in selecting the relevant offices. If anything and
barring individual shortcomings which – from
time to
time – do manifest themselves even in the highest and
most respected of offices, these offices are eminently
qualified for
membership of the JSC.”[48]
[70]
Requiring
that “those that bear the responsibility of nominating,
designating or electing individuals for membership of the
JSC will
take their responsibility seriously and identify
people who are suitably qualified for the position”,[49]
must
mean more than simply requiring that designees for appointment to the
JSC meet the basic eligibility criterion of being MPs
or advocates or
attorneys. It means that, to fulfil its constitutional mandate of
appointing judges who will uphold the legitimacy
of the judiciary and
the spirit and tenets of the Constitution, the designating body (the
NA) must ensure that the process for
the designation and appointment
of those responsible for selecting judges is subject to stringent
standards. Most
importantly, the NA, as the designating authority, must, in
exercising its discretion, designate from among the nominees’
individuals who are not only formally eligible but who are also
substantively suited for appointment to the JSC. The
judiciary’s legitimacy depends heavily on public trust and respect.
Once public trust in the judiciary is eroded, democratic
foundations
are broken and chaos is bound to descend.
[71]
As already pointed out, designating a person who
is not fit and proper to serve on the JSC undermines the
constitutional imperative
set out in section 165(4) of the
Constitution. Such a designation not only erodes public confidence in
the independence, impartiality,
and dignity of the judiciary but also
compromises the integrity and credibility of the JSC itself. Any act
that diminishes public
respect for the judiciary constitutes an
affront to the foundational values of our constitutional democracy.
[72]
The
Full Court in Hlophe
v Judicial Services Commission,[50]
in similar terms, went on to explain that “[w]hen choosing
judges, the JSC acts as the selection panel of the nation. When
disciplining judges, the JSC serves as the jury of the nation”.[51]
The Court further held:
“[50] In summary on
this point, if the JSC is to choose persons who can enjoy public
credibility as fit for purpose as judges and
to discipline judges for
their failure to adhere to the norms of the judicial role, the JSC
had to be constructed to meet democratic
norms so that it could make
a claim for its own public credibility in a democratic society. Its
representative character is therefore
an essential component of its
structure, and moreover, of its mode of functioning.”
[73]
Other regional instruments, such as the Lilongwe
Principles and Guidelines on the Selection and Appointment of
Judicial Officers
(“the Lilongwe Principles”), are also
instructive when interpreting the NA’s powers in terms of
section 178(1)(h)
of the Constitution. These principles were adopted
at the Southern African Chief Justices’ Forum Conference and Annual
General
Meeting, Lilongwe held on 30 October 2018. Some of the
important principles from the Lilongwe Principles are highlighted by
FUL
in its founding affidavit. These include:
(a)
The
selection and appointment authority (of judicial officers) should be
independent and impartial;[52]
(b)
There
is a need for adequate separation between the administration of the
selection and appointment authority (the JSC) from any
factors which
may affect the integrity of the process.[53]
(c)
Judicial
independence is ensured through the integrity of the selection and
appointment process along with security of tenure of
judicial
officers. This process enhances public confidence and trust in the
administration of justice.[54]
Events after the
impeachment of Dr Hlophe
[74]
We have already briefly referenced the facts that
led to the impeachment of Dr Hlophe. These are well-known, and it
would serve
no purpose to regurgitate the extensive material
presented to the Judicial Tribunal and the JSC. That said, the
dispute now before
us must be determined not only in light of the
unprecedented circumstances surrounding Dr Hlophe’s
impeachment, but also
with reference to the events that unfolded
thereafter, particularly following the delivery of the Full Court’s
judgment in
Part A. These subsequent developments are not only
pertinent to the question of Dr Hlophe’s continued suitability
to serve
on the JSC but also bear on the issue of whether a costs
order should be granted in these proceedings.
[75]
Dr Hlophe does not accept the findings against him
by the JCT, the JSC, the NA, and the courts and maintains that no
legal process
was followed to remove him from office. He further
asserts that the decision to impeach him was political. He states
that –
“There
was no legal process followed by the National Assembly to impeach me
and the law which included holding a proper hearing to
receive and
evaluate the evidence was simply sacrificed at the altar of political
expediency.”[55]
[76]
Dr
Hlophe also says that the mere fact that he did not accept the
findings of “the JSC, the Full Court in the Gauteng High
Court
Division, the NA’s hasty and unconstitutional conduct does not
mean that [he undermines] the judiciary”. [56]
[77]
After
he was sworn in as an MP, he said the following in an interview with
the SABC:[57]
“The
decision to impeach me was a political decision. I said it before. I
was impeached and maintain that. There was no law that
was ever used
there. It was politics, and I do believe that the fact that I was
perceived as being closely associated with President
Zuma is another
reason for the decision that was taken.”
[78]
He
also claims that he was being “persecuted” and that he
was “dismissed summarily from office” and “just
fired and treated like a dog”.[58]
The same arguments had been raised before and were rejected by the
Tribunal, the Portfolio Committee, and the NA.
Judgment of Wilson, J
[79]
Dr
Hlophe and MK also sought to circumvent the consequences of an
interdict[59] in terms of
which Dr Hlophe was precluded from sitting as a member of the JSC, by
launching an urgent application before the Johannesburg
Division of
the High Court.[60] In this
application, they sought to interdict the JSC from conducting the
October 2024 interviews for important judicial appointments
without
Dr Hlophe’s presence. Wilson, J, dismissed the application. Although
stating that he could not deal with the scandalising
of the Court in
such an urgent hearing, the court, nonetheless, said the following:
“22
FUL amplified its submissions by reference to a press release issued
by MK in the aftermath of the Full Court’s ruling.
As Mr. Mpofu
accepted, the content of that press release is deeply troubling. I
will not give it credence by repeating its contents
here. It is
enough to say that the press release constituted a gratuitous and
wholly unjustified attack on the Full Court’s
decision, and on
the judiciary in general. It reflects poorly on MK, and upon the
individuals who are responsible for drafting
and issuing it. Dr.
Hlophe, and former President Jacob Zuma, who is the leader of MK
Party, have been invited to dissociate themselves
from it. I hope
that they do so.
23 It may be true, as Mr.
du Plessis submitted, that the press release was contemptuous and
that, for that reason, the right to
free expression does not extend
to it. But it forms no part of my function to make that determination
here. The issue of which
side of the line the press release falls was
not fully argued before me, and there is no reason why the contempt
it may very well
have constituted cannot be explored, and if
necessary punished, in other proceedings”.
The application for
leave to appeal Part A of the Full Court
[80]
After
the Full Court had granted Part A in these proceedings, Dr Hlophe
launched a fresh attack on the credibility of the judiciary
by
attacking the integrity of the presiding judges. In its unreported
judgment refusing leave to appeal the judgment of the Full
Court
handed down in Part A, reference is made to certain remarks made by
MK and Dr Hlophe after their judgment in Part A.[61]
The Full Court[62] dealt with
the public statements in its judgment refusing Dr Hlophe’s and
MK’s applications for leave to appeal with
punitive costs as
follows:
“42.
Ms February refers to “MK Party’s contemptuous statement
on the part A judgment” and says “following
the delivery
of judgment by this court, the MK party chose to launch a vitriolic
attack not only against the court, but also against
non-governmental
organisations that had challenged the designation of Dr Hlophe by the
National Assembly.”
43. She describes how the
statement refers to the “continued lynching of Dr Mandlakayise
Hlophe” and how it went on
to state “the MK Party notes
the incompetent, irrational, absurd and blatantly political judgment
of the Western Cape High
Court, which is regrettable but not
surprising.”
44. This wanton attack on
the judiciary cannot and shall not be tolerated by our courts in the
interests of preserving the rule
of law and safeguarding the
institutional integrity of our judicial system.
45. …
46. The media statement
was made by a party which forms part of the Legislature and shares
the responsibilities imposed by section
165(4) of the Constitution on
organs of the state including the Legislature.
47. The obligations which
are clearly stated in s. 165(3) leave no room for doubt regarding the
obligation imposed on state organs
such as Parliament and parties
such as the MKP and it states: ‘(3) No person or organ of state
may interfere with the functioning
of the courts’. The
publication of the said statement is an affront to these obligations.
48. Ms February makes
further references to the attack in the statement, which was
wide-ranging and spewing venom at all the participants
in the
democratic project, and in that vein stated:
‘As
history has shown, it was the racist DA, supported by the ANC of
Cyril Ramaphosa that voted for the impeachment of Dr Hlophe
as a
judge. The same DA now colluding with Freedom Under Law and
Corruption Watch – racist agents of white monopoly capital
masquerading as civic organisations – who want to usurp the
power of the Legislature using the Judiciary.’
49. Describing a judgment
in the terms quoted above is deeply offensive, disrespectful and
contemptuous. It grossly exceeds the
bounds of legitimate comment and
is deliberately intended to impugn the dignity and effectiveness of
the court and the judiciary.
50. Instead of dealing
with the facts and the law the applicants chose to attack the
respondents utilising baseless and highly defamatory
statements that
FUL is racist and an ‘an agent for white monopoly capital’.
This smacks of gutter politics and can
hardly be expected of an
organisation that represents voters in parliament.
51. …
52. None of Mr Zuma, Dr
Hlophe and MK has publicly distanced themselves from the scandalising
statements made of this Court.
53. Ms February also
makes reference to the Sunday Times of 13 October 2024 where Dr
Hlophe was reported as saying:
‘We
lost two successive games, and you know what happens in South Africa
– you lose, you lose, you lose. I was a judge myself for
29 years. It
did not surprise me when we lost, because we know the judiciary is
captured. It is as simple as that.’
This
contemptuous and unsubstantiated statement implicating both the Full
Court of the Western Cape High Court and Judge Wilson
of the Gauteng
Division and the entire judiciary was made to a national newspaper
without an iota of evidence. This speaks to Dr
Hlophe denigrating
this Court and the judiciary at large.”[63]
[81]
Notwithstanding the findings of the Full Court
regarding these public statements, both Dr Hlophe and MK continue to
stand by those
statements in their supplementary answering affidavits
in these proceedings.
[82]
Dr
Hlophe, in Hlophe
v Judicial Services Commission[64]
relied on his right to freedom of speech to justify his utterings
denigrating the judiciary. The Full Court in Hlophe
was
clearly not persuaded by the argument and said the following:
“[130]
The contention that section 16 freedom of expression rights arise at
all is misconceived. There is no room to prevaricate
about the role
of a judge requiring the imposition of several ethical restraints to
which the general public are not bound. Though
everyone is at liberty
to think what they like, judges are bound to conduct themselves at
all times in a manner that protects and
promotes the integrity of the
legal process. In that context, it is not open to a judge in a
private conversation to blurt out
his preferences, biases or opinions
to a fellow judge who, to his knowledge, is preparing a judgment on
those very issues about
which he has a firm view. Every ethical judge
would expect the same restraint from other colleagues.”
[83]
Dr
Hlophe not only attacked the judges who presided in Part A of these
proceedings, he also criticised other judgments that have
gone
against him. He does not simply describe these decisions as
incorrect; he, in fact labels them as “an abuse of judicial
authority”[65] and says
that “[i]t appears to be that there was a general political
drive to have my [removal] achieved irrespective of
the legalities of
it”.[66]
[84]
Dr
Hlophe further blames organisations such as FUL for his impeachment,
claiming that he was “unconstitutionally removed from
office
through the dubious interference of organisations like the FUL.”[67]
Dr Hlophe further made it clear that he planned to promote in the JSC
the conduct that led to his impeachment and that “I
will make
sure that judges are not victimised for holding private views and
expressing them to their colleagues”.[68]
[85]
But,
as pointed out by the Constitutional Court in S
v Mamabolo,[69]
there is a difference between legitimate criticism of the judiciary
and scandalising the court:
“An
important distinction has in the past been drawn between reflecting
on the integrity of courts, as opposed to mere reflections
on their
competence or the correctness of their decisions. Because of the
grave implications of a loss of public confidence in
the integrity of
its judges, public comment calculated to bring that about has always
been regarded with considerable disfavour.
No one expects the courts
to be infallible. They are after all human institutions. But what is
expected is honesty. Therefore the
crime of scandalising is
particularly concerned with the publication of comments reflecting
adversely on the integrity of the judicial
process or its
officers.”[70]
[86]
It is
concerning that Dr. Hlophe continues to refuse to acknowledge any
wrongdoing or accept accountability, despite the adverse
findings
made against him by the JCT, the JSC, and the courts. He maintains
that the conduct that was found to constitute gross
misconduct should
be permissible amongst judges. He says that: it “should not be
our culture that judges are removed from
judicial office because of
private remarks such as those I made to the two judges”[71]
and undertakes that as an MP he will be “advocating for a
culture where judges freely engage with each other – which
culture has been confirmed by numerous judges appearing before the
JSC in which they have declared that they unreservedly assist
new
judges or other colleagues with their work”.[72]
He also undertakes to promote this culture in which “judges are
freed from the fear of retribution and arbitrary
removal
from judicial office for remarks that they make to each other on
pending matters”.[73]
FUL’s
supplementary affidavit and supplementary replying affidavit
[87]
In its supplementary affidavit and supplementary replying affidavit,
FUL referred the Court
to five media publications, all published
after the Full Court’s judgment was handed down, each
containing further scandalous
attacks on the judiciary.
[88]
FUL
accepts that some of the denigrating statements were made after the
NA had decided to designate Dr Hlophe and thus were not
before the NA
at the time. FUL also accepts that its review is based on the facts
set out in their founding affidavit and not those
set out in its
supplementary and supplementary replying affidavit. FUL, however
submitted that it is important that these further
and continued
denigration of the judiciary are nonetheless relevant to this Court’s
broad remedial powers.[74] FUL
further submitted that the evidence is relevant for at least three
reasons. The first is that Dr Hlophe and MK have denied
that Dr
Hlophe disrespects or seeks to undermine the judiciary but, if regard
is had to more recent statements, little reliance
can be placed on Dr
Hlophe’s denials and, as FUL submitted, should be rejected on
the papers. Secondly, the recent public
statements make it clear that
Dr Hlophe has every intention to continue to denigrate the judiciary.
As such, FUL submits, Dr Hlophe
is unsuitable to sit on the JSC.
Thirdly, FUL submits that the recent further conduct of Dr Hlophe and
MK; their continuing and
unrepentant attacks against the Full Court’s
decision in Part A; and their emphatic reaffirmation of those
statements in
Part B makes it clear that a punitive costs order is
warranted. In one of the Press Statement[75]
it is said for instance that:
“Statement
on the judgment of the Western Cape High Court in favour of the
continued lynching of Dr. Mandlakayise Hlophe.
MK notes the incompetent,
irrational, absurd and blatantly political judgment of the Western
Cape High Court, which is regrettable
but not surprising.
The judgment constitutes
gross judicial overreach and disregards the provisions of the very
constitution it purports to uphold.
This constitutional
stalemate is deliberately created by the incompetent,
politically-driven and compromised Judiciary. This horror
judgment
will be subject to an immediate appeal.”
[89]
FUL addressed a letter to the attorneys for MK and
Dr Hlophe after the first press statement stating that if MK or Dr
Hlophe objected
to the contents of MK’s media statement then
they should publicly say so. On 3 October 2024, MK’s attorneys sent a
letter
stating that the letter of 2 October 2024 “fell through
the cracks due to the current urgent proceedings” and
undertaking
“to take instructions” after dealing with the
urgent application.
Review
The standard of review
[90]
Except for MK, it is not disputed that the NA’s
decision to designate six members to the JSC constitutes
administrative action
under PAJA. In this regard section 1 of PAJA
provides that administrative action comprises –
“any
decision taken, or any failure to take a decision, by-
(a)
an organ of state, when
(i) exercising power in
terms of the Constitution or a provincial constitution; or
(ii) exercising public
power or performing a public function in terms of any legislation;
…
which adversely affects
the rights of any person and which has a direct, external legal
effect…”
[91]
Having regard to the facts:
(a)
The NA is an organ of state.
(b)
The decision to designate Dr Hlophe to the JSC was
taken in terms of section 178(1)(h) of the Constitution, read with
the Judicial
Service Commission Act. The mere fact that the source of
the power is in the Constitution does not mean that the power is not
administrative
in nature. Section 1(a)(i) of PAJA expressly provides
that administrative action includes decisions taken by an organ of
state
when “exercising a power in terms of the Constitution”.
That could not be the case if a constitutional source was dispositive
of the character of a decision.
(c)
The decision adversely affects rights in that the
decision has the potential to affect the rights of applicants
applying for judicial
positions before the JSC, as well as the
constitutional rights of all South Africans.
(d)
Lastly, the decision has a direct, external, legal
effect of determining who will fill one of the key positions on the
JSC. Although
the “legislative functions of Parliament, a
provincial legislature or a municipality” are excluded from the
ambit of
section 1 of PAJA, no provision is made for the exclusion of
the administrative functions of the NA. The designation function is
not a legislative function. It is a function performed by the NA in
terms of section 178(1)(g) of the Constitution.
[92]
The NA’s function of designating six members
is thus “administrative action” as defined in PAJA. The
Speaker does
not dispute the contention that the decision in question
does not constitute a legislative function excluded from the
definition
of “administrative action” under PAJA and
accepts that the NA’s function of designating six members
amounts to
“administrative action” as defined therein. Dr
Hlophe and MK also do not deny that the decision amounts to
administrative
action.
[93]
MK takes issue with the contention that PAJA
applies to the review and submits that the decision to designate Dr
Hlophe is only
subject to review under the principle of legality. MK
submits that the NA’s decision is expressly excluded from PAJA
because
section 1(a)(dd) of PAJA applies. This is incorrect. Section
1(a)(dd) only applies to the legislative functions of the NA. MK also
claims that the exclusion provided for in section 1(a)(gg) of PAJA
applies to the present matter. We disagree. Section 1(a)(gg)
only
applies to decisions taken by the JSC in terms of any law. It does
not apply to the decision of the NA to designate six of
its members
to the JSC. The challenge in this matter is the NA’s decision –
not any decision taken by the JSC.
[94]
MK also argues that the NA took one “indivisible
decision” to designate six persons to the JSC and that, should
it be
found that the decision is irrational, all six designees must
be removed. We do not agree. There exists no reason why each of these
nominations is dependent on the other. Consequently, nothing prevents
a challenge to the designation of Dr Hlophe only. Moreover,
having
regard to the unusual facts of this case, there exists a rational
basis for treating Dr Hlophe differently simply on the
basis that he
is the only representative of the NA who was designated to sit on the
JSC after the NA impeached him for having committed
gross misconduct
and whose continued presence as a judge would undermine the public’s
confidence in the independence of the
judiciary.
[95]
Lastly, the Full Court in Part A has already dealt
with the applicability of PAJA:
“[57]
We are satisfied that the NA’s decision to designate six of its
members to the JSC, including Dr Hlophe, amounts to administrative
action under PAJA. It is an organ of State, either exercising a power
in terms of the Constitution, or exercising a power or performing
a
public function in terms of any legislation. In exercising such
power, a decision was taken which adversely affects the
constitutional
rights of South African citizens and has the potential
to affect the rights of future applicants applying for judicial
appointment.
No doubt, the NA’s decision was not a legislative
function excluded from the definition of administrative action, an
aspect
which the Speaker does not take issue with. Neither Dr Hlophe,
nor ATM further denies that the decision amounts to administrative
action. Only MK states that PAJA is inapplicable. In any event, if
PAJA might be held to be inapplicable, the review court would
be
entitled to adjudicate the dispute based on the doctrine of legality
in due course”.[76]
[96]
In conclusion, therefore, we agree with the
submission that the impugned decision constitutes administrative
action and is reviewable
under PAJA. Moreover, the designation made
by the NA clearly amounts to the exercise of public power under the
Constitution and
is therefore subject to the principle of legality.
Each of the grounds set out below satisfies the threshold for
judicial review
under either PAJA or the principle of legality.
Material error in law
[97]
When designating MPs to the JSC, the NA is
required to consider whether they are suitable for appointment. Not
only did the NA not
exercise a discretion, it mistakenly laboured
under the impression that it did not even have such discretion in
terms of section
178(1)(h) of the Constitution. As a result, it
designated Dr Hlophe without any proper consideration of his
suitability, merely
because his political party had nominated him.
The designation of Dr Hlophe was thus based on a material error of
law.
[98]
The power of the NA to “designate”
does not mean that it may blindly follow the dictates of any
political party. It
must exercise its own discretion independently.
In designating members to the JSC, the NA exercises public power and
must do so
in a manner consistent with the Constitution and the rule
of law. The following considerations support this interpretation of
section
178(1)(h): Firstly, the constitutional text explicitly vests
the power of designation in “the National Assembly” as an
institution, not in individual political parties. The only limitation
imposed is that at least three of the six designated members
must be
drawn from minority parties. Nothing in the Constitution authorises
the NA to delegate or abdicate its responsibility to
political
parties. Yet, in the present instance, the NA effectively did so.
Secondly, the record of the proceedings demonstrates
that the NA
approached the designation process as though it were appointing
representatives to parliamentary committees or sub-committees.
This
was a fundamental error. The JSC is not a committee or subcommittee
of Parliament, but an independent constitutional body
entrusted with
safeguarding the integrity of the judiciary.
[99]
The Speaker thus erred in her view that the sole
requirements for designation were that a nominee must be a member of
the NA and
that half of the designated members must be drawn from
opposition parties. She further erred in her view that no additional
criteria
were applicable and, in particular, that there was no
specific requirement for a nominee to be “fit and proper”
to be
appointed to serve on the JSC. The Constitutional Court per
Madlanga, J, has made it clear that the individuals selected to sit
on the JSC must be “suitably qualified” candidates. It
follows that the NA should at least have considered whether
Dr Hlophe
is suitably qualified for appointment.
[100]
In S
v Zuma,[77]
the
Constitutional Court held that “the Constitution must be
interpreted so as ‘to give clear expression to the values it
seeks to
nurture’[78]
and
that ‘a Constitution ’embodying fundamental rights should as far as
its language permits be given a broad construction”.[79]
The
Constitutional Court affirmed the proper approach to interpreting the
Constitution with reference to S
v Mhlungu[80]
where
the Constitutional Court held that the Constitution must be “broadly,
liberally and purposively [be] interpreted so
as to avoid ‘the
austerity of tabulated legalism’.”
[101]
The
Constitutional Court has affirmed that a proper interpretation of the
Constitution entails not only a textual analysis of its
express
language but also a purposive reading of the relevant provisions,
viewed through the lens of “the constitutional
imperatives of
the rule of law, the separation of powers and judicial
independence”.[81]
[102]
The words “fit and proper” are only
used four times in the Constitution: (i) In section 174(1) in respect
to the appointment
of judges. (ii) Section 193(1) regarding the
appointment of individuals to serve as Public Protector and other
commissions created
by Chapter of the Constitution. (iii) The
appointment of the Auditor-General in section 193(3) of the
Constitution. (iv) Section
193(3) of the Constitution deals with the
appointment of commissioners for the Public Service Commission.
[103]
Merely because section 178(1)(h) of the Constitution does not
expressly require that a designated nominee must
be fit and proper
for appointment, does not imply that it would be lawful or rational
to appoint individuals who are not fit and
proper. Such requirement
is necessarily implied through a proper interpretation of the
Constitution as a whole. As already explained,
the Constitutional
Court in Helen Suzman Foundation made it clear that those
designated to serve on the JSC must be fit and proper candidates.
This the NA has failed to appreciate.
Section 165(4) of the
Constitution: Rationality
[104]
Section 178(1)(h) must also be read with section
165(4) of the Constitution, bearing in mind that the fundamental
purpose of the
JSC is to ensure judicial independence and to promote
public confidence in the judicial appointment process by recommending
for
appointment only people who are fit and proper. As pointed out
above, the Constitutional Court in Helen
Suzman Foundation made it clear that
bodies responsible for designating individuals to the JSC are obliged
to approach this task with seriousness
and ensure that only those who
are suitably qualified for the position are selected from the
nominees. To hold otherwise would
offend against section 178(1)(h)
read with 165(4) of the Constitution and consequently render them
ineffective.
[105]
The means adopted by the NA in designating Dr Hlophe merely because
he is an MP following his nomination
by MK, is not rationally
connected to the constitutional purpose underlying the power
conferred to it by section 178(1)(h) of the
Constitution. Dr Hlophe,
as indicated, was found guilty of gross misconduct and removed from
judicial office. He has refused to
acknowledge the impropriety of his
conduct and continues to engage in scandalous attacks on the
judiciary. His presence on the
JSC ineluctably undermines the
legitimacy of the judicial appointment process. Given his serious
breach of the judicial oath, Dr Hlophe is plainly
unfit to assess the suitability of candidates for judicial
appointment and has exhibited a marked deficiency
in the qualities
essential to the office of a judicial officer.
[106]
Section 165(4) of the Constitution requires state
organs – in the present matter the NA – to assist and protect the
courts to ensure
their independence, impartiality, dignity,
accessibility, and effectiveness. The designation process in
terms of section 187(1)(h) is designed to uphold the judiciary’s
moral authority and foster public confidence
in its integrity and
independence. A decision by the NA will be unlawful and
unconstitutional if it frustrates, rather than assists
or protects,
the independence, impartiality, dignity, accessibility, and
effectiveness of the courts. The designation of an
individual who himself has been found to be unfit to continue serving
as a judge, to participate in the selection
of judges gravely
compromises the integrity of the selection process and undermines
public confidence in the judiciary’s
ability to fulfil its
constitutional mandate. The decision of the NA is unlawful and
unconstitutional as it frustrates the requirements
in section 165(4)
of the Constitution. Accordingly, the designation of Dr Hlophe
to the JSC cannot be said to advance the constitutional purpose of
ensuring the appointment
of fit and proper candidates to the bench.
His designation was therefore irrational and therefore falls to be
reviewed.
Relevant and
irrelevant considerations
[107]
The decision by the NA falls to be set aside on
the basis that it failed to properly consider relevant considerations
but instead
considered various irrelevant considerations in arriving
at its decision.
[108]
The NA departed from the premise that no provision
in the Constitution bars the designation of a member of the NA to the
JSC. Dr
Hlophe submitted that the fact that he was previously a judge
and was removed is “totally irrelevant”.
[109]
As previously pointed out, this interpretation of
section 178, read with section 165 of the Constitution, is untenable.
The NA was
obliged to consider a glaringly relevant fact, namely that
the NA had recently impeached Dr Hlophe for gross misconduct.
Instead,
the NA considered the following irrelevant considerations:
(a)
That the NA must, in terms of the NA’s
ordinary practice or convention, accept the decision of a political
party in appointing
a representative to a committee or subcommittee
of the Assembly. The answer to this simply is that the practice or
convention followed
by the NA cannot displace what section 178(1)(h)
of the Constitution requires.
(b)
The JSC is not a committee or subcommittee of the
NA.
(c)
The only requirement is that at least three of the
six candidates must be representatives of minority parties. Despite
having been
nominated by the respective parties, the NA must exercise
discretion to designate six members of the National Assembly to the
JSC.
[110]
Section
1(c) of the Constitution entrenches the rule of law as a founding
value in our constitutional order and affords the courts
the power to
set aside any unlawful conduct by an organ of state.[82]
The NA, similar to all other organs of State, is bound by the
Constitution and is required to comply with the constitutional
obligations
it imposes. We are satisfied that the decision to
designate Dr Hlophe must be reviewed and set aside on each of the
grounds advanced.
The NA’s decision is inconsistent with
section 165(4) of the Constitution. This inconsistency, in and of
itself, renders
the decision unlawful. The National Assembly’s
designation of Dr Hlophe was neither a lawful nor rational decision
considering
his impeachment and the reasons therefor as traversed
above.
Remedy
[111]
Apart from seeking a review of the decision by the
NA to designate Dr Hlophe as one of its representatives to the JSC,
the DA, Corruption
Watch and FUL seek a declaration that the NA may
not designate Dr Hlophe to serve on the JSC. FUL further seeks an
order remitting
the matter back to the NA for reconsideration.
[112]
In
exercising a discretion to grant a declaratory order, a court must do
so with due regard to all relevant facts. One of the factors
that the
court must take into consideration is whether the applicant/s has an
interest in an existing future or contingent right
or obligation.[83]
A court must also consider whether a declaratory order can clarify
and finalise disputes that, if unresolved, may have far-reaching
consequences for each party.[84]
The present matter is plainly such a case.
[113]
The NA has fundamentally misunderstood the nature
of its power to designate six members to serve on the JSC. We concur
with the
submission that the constitutional principles implicated in
this matter extend beyond the specific facts of the present case and
will bear significantly on how the NA exercises its powers under
section 178 of the Constitution in future. As submitted by FUL,
the
granting of declaratory relief is essential to uphold the integrity
of the judicial appointment process, the independence of
the
judiciary, and the broader public interest.
[114]
The Speaker has indicated that a new designation
will be required given Dr Hlophe’s resignation from the JSC.
She has further
acknowledged that any future designation by the NA
must be guided by this Court’s determination on two issues:
firstly, whether
the NA has a discretion to assess the fitness of a
nominee for designation under section 178(1)(h) of the Constitution,
and, secondly,
whether it acted lawfully or unlawfully in making the
previous designation. We have addressed both these issues.
[115]
What
now remains is the question of whether this Court should grant a
declaratory order to the effect that Dr Hlophe is not fit
and proper
to serve on the JSC, and, as a consequence, that the NA may not
designate him to that position. Granting a declaratory
order, which
is a flexible remedy, will, in the words of the Constitutional Court
in Rail
Commuters Action Group v Transnet Ltd t/a Metrorail,[85]
“assist in clarifying legal and constitutional obligations in a
manner which promotes the protection and enforcement of our
Constitution and its values.”
[116]
Having regard to the specific circumstances
surrounding the impeachment of Dr Hlophe and his subsequent conduct,
we are satisfied
that he is neither fit nor proper for designation to
the JSC. As we have repeatedly emphasised, the participation of Dr
Hlophe
in the judicial appointments process risks eroding public
confidence in the judiciary and thereby undermining its legitimacy
and
effectiveness. As previously stated, public disrespect for the
judiciary amounts to an assault on constitutional democracy and must
be firmly guarded against. Through the impeachment of Dr Hlophe, the
NA has effectively already determined that his continued involvement
in judicial affairs would diminish public trust.
[117]
The fact that Dr Hlophe is highly qualified and
the fact that he has served as a judge for many years, is not the
point. The point
is that he was removed from office for gross
misconduct and continues to seriously threaten the independence of
the judiciary.
His doctorate from Cambridge and his numerous
publications and time on the bench do not erase this critical fact.
It is the presence
of an impeached judge and the circumstances that
gave rise to the impeachment that will prejudice the JSC’s
ability to do
its work. Dr Hlophe’s academic ability does not
cure this.
[118]
As previously indicated, it is not necessary for us to find that no
judge removed from office for gross
misconduct may ever serve on the
JSC. In this matter, however, we must consider the specific
misconduct for which Dr Hlophe was
impeached and the events that
followed his impeachment. His conduct, as recorded in the judgment of
the Full Court refusing leave
to appeal Part A, is particularly
pertinent, as it demonstrates a marked disregard for the authority
and integrity of the courts.
Dr Hlophe is therefore not only unfit to
serve on the JSC because he was removed from judicial office for
gross misconduct; he
is also unfit because he has persistently sought
to undermine the credibility of the JSC, the JSC’s investigative
processes into
the allegations against him, and the judges who have
presided over matters in which he was a litigant. In these
circumstances,
the granting of a declaratory order is justified.
[119]
We
should also, in passing, briefly refer to Dr Hlophe’s reliance
on foreign authority, which permitted persons in positions
comparable
to Dr Hlophe to serve on bodies comparable to the JSC. The European
Court of Human Rights[86] was
approached for an advisory opinion in a matter concerning the
imposition of a prohibition on an individual to register as a
candidate in the Seimas elections following her impeachment owing to
her fleeing Lithuania in view of pending criminal proceedings.
The
advisory opinion was preceded by the judgment of the Lithuanian
Constitutional Court which held that a prohibition that an
impeached
president may not hold public office, including parliamentary
membership was disproportional.[87]
[120]
In its advisory opinion, the European Court of Human Rights
considered the circumstances under which the
Lithuanian government
could lawfully bar an impeached legislator (Ms. Paksas) from holding
public office in the future. In brief,
the European Court of Human
Rights emphasized that the duration and scope of such a prohibition
should be assessed primarily with
reference to the nature of the
functions the individual seeks to perform. The rationale for this is
that the purpose of impeachment
and the resulting restriction is not
punitive in nature, but rather aimed at safeguarding the integrity of
legislative institutions.
Accordingly, any such prohibition must be
framed principally in regard to the institutional requirements and
the proper functioning
of the office or body to which the person
seeks admission.
[121]
In reaching a conclusion, the European Court of Human Rights opined
that the ban should be proportionate with due
regard to all relevant circumstances including the “requirements
of the proper functioning
of the institution of which that person
seeks to become a member, and indeed of the constitutional system and
democracy as a whole
in the State concerned.”
[122]
Apart from the fact that the European Court of
Human Rights only expressed an opinion, the Paksas
matter is distinguishable from the
present matter on the facts and on the law. In that matter, the
European Court of Human Rights
was considering in what circumstances
Lithuania could prohibit an impeached legislator from holding public
office again. Here we
are dealing with an impeached judge which in
itself raises entirely different considerations pertaining to the
importance of judicial
integrity. The Paksas
matter also does not assist Dr Hlophe from a legal
point of view in light of the Court’s opinion that bans on
holding public
office after impeachment are justified to protect the
proper functioning of the institution of which that person seeks to
become
a member and indeed of the constitutional system and democracy
as a whole in the State concerned.
Should the matter be
remitted to the NA?
[123]
Section 172(1)(a) of the Constitution empowers a
court, when determining a constitutional matter or declaring any law
or conduct
inconsistent with the Constitution, to declare it invalid
to the extent of that inconsistency. FUL seeks an order remitting the
matter to the NA. In considering such an order, the court’s
discretion is guided solely by considerations of justice and equity.
[124]
We have taken into account that Dr. Hlophe has
since resigned from the JSC. Given our order declaring Dr. Hlophe
unfit for designation
in terms of section 178(1)(h) of the
Constitution, a remittal would neither be just nor equitable and
would not serve any practical
purpose.
Costs
[125]
The DA, FUL, and Corruption Watch seek costs
against the respondents who oppose these applications, including the
costs of two counsels.
They also seek punitive costs against Dr
Hlophe and MK on an attorney-client scale.
[126]
Both FUL and DA rely on various public statements
made by MK and Dr Hlophe, including accusations that FUL is
“colluding”
with the DA and has “an obsessive and
fundamentalist agenda to obliterate my role in my country.”
[127]
FUL is further described as a “racist agents
of white monopoly capital masquerading as civic organisations – who
want to usurp
the power of the Legislature using the Judiciary.”
The DA is described as “mercenaries of the white imperialist
project
who continue to seek to exhume and rebury Dr. Hlophe for his
competence and excellence.”
[128]
Dr Hlophe also accuses Retired Judge Cachalia of
abusing his position as a retired judge and spreading false and
dishonest statements.
[129]
President
Mpati, Mr. Bizos, former Chief Justice Mogoeng, Mlambo JP, Kamphepe
ACJ, Mbha J, and Premier Winde have all been accused
of bias.[88]
[130]
The judges who presided over Part A of these
proceedings were also subjected to vitriolic attacks. The judgment in
Part A was characterised
as a “gross judicial overreach,”
allegedly for disregarding the very provisions of the Constitution it
purported to uphold.
The court was further accused of being
“politically driven”, and the judgment was disparagingly
described as a “horror
judgment”.
[131]
In
Minister
of Cooperative Governance and Traditional Affairs v De
Beer,[89]
the
Supreme Court of Appeals regarded similar statements as sufficiently
contemptuous that the court drew specific attention thereto
in
referring its judgment to the National Director of Public
Prosecutions. In Moyane
v
President Ramaphosa and Others,
the court similarly had this to say about unsubstantiated
insults:[90]
“[W]hen
an award of costs is considered, which is within the discretion of
the Court: ‘It is a discretion that must be exercised
judicially having regard to all relevant considerations. One such
consideration is the general rule in constitutional litigation
that
an unsuccessful litigant ought not to be ordered to pay costs. The
rationale for this rule is that an award of costs might
have a
chilling effect on the litigants who might wish to vindicate their
constitutional rights. But this is not an inflexible
rule. There may
be circumstances that justify departure from this rule such as where
the litigation is frivolent or vexatious.
There may be conduct on the
part of the litigant that deserves censure by the Court which may
influence the Court to order an unsuccessful
litigant to pay costs.
The ultimate goal is to do that which is just having regard to the
facts and circumstances of the case’.
This principle has been
applied throughout constitutional litigation and I will apply it in
these proceedings. It is clear from
my judgment that the conduct of
the Applicant in these proceedings is particularly reprehensible. It
is vexatious and abusive.
Both the Office of the President and the
Third Respondent have been attacked, insulted and defamed without any
reasonable cause.
Allegations impugning their integrity and character
have been made regardless of the objective facts. Insults have been
hurled
at every conceivable opportunity. No reasonable or lawful
grounds exist for such unwarranted attacks on the integrity of the
First
and Third Respondents. No cause of action has been made out for
interim relief and the whole of the application is an abuse of the
process of this Court. I cannot think of a single reason why this
application should be classified as
a bona fide attempt to secure or safeguard the Applicant’s
Constitutional,
common law or contractual rights. I have set out the relevant
considerations in my judgment and on the facts of
the matter before
me, there is in my view no reason whatsoever why I should not make a
cost order against the Applicant. Not only
is a cost order
appropriate in this instance, but on the punitive scale of Attorney
and client for the reasons that I have already
mentioned. It is time
that litigants realize that they cannot lightly make abusive
allegations in Court affidavits under the mantle
of safeguarding
their constitutional rights, on the assumption that Court cost orders
would not be granted against them. In my
opinion, the facts of the
matter before me clearly show that a punitive cost order against the
Applicant is justified. His behaviour
throughout these proceedings is
abominable.”[91]
[132]
We agree with the submissions by FUL, the DA, and
Corruption Watch that the statements made by MK and Dr Hlophe
underscore their
ongoing efforts to undermine the judiciary. Both his
conduct and that of MK justify costs on a punitive scale.
Order
[133]
In the premises, the following orders are made:
Case No. 16170/24
(Democratic Alliance v MJ Hlophe and Others)
1.
The decision of the National Assembly taken on 9
July 2024 to designate the First Respondent as one of its
representatives to the
JSC is:
1.1
Declared unconstitutional and invalid; and
1.2
Reviewed and set aside.
2.
It is declared that the National Assembly may not
designate Dr. Mandlakayise John Hlophe to serve on the Judicial
Services Commission
in terms of section 178(1)(h) of the
Constitution.
3.
Dr Mandlakayise John Hlophe and the Umkhonto
Wesiwe Party are ordered to pay the applicant’s costs on an
attorney and client
scale, including the costs of two counsel on
Scale C.
AND
Case no: 16771/2024
(Corruption Watch NPC v Speaker of the National Assembly and others)
1. The decision of the
National Assembly taken on 9 July 2024 to designate the First
Respondent as one of its representatives to
the JSC is:
1.1
Declared unconstitutional and
invalid; and
1.2
Reviewed and set aside.
2. It is declared that
the National Assembly may not designate Dr. Mandlakayise John Hlophe
to serve on the Judicial Services Commission
in terms of section
178(1)(h) of the Constitution.
3. Dr Mandlakayise John
Hlophe and the Umkhonto Wesiwe Party are ordered to pay the
applicant’s costs, including the costs
reserved in Part A, on
an attorney and client scale, including the costs of two counsel on
Scale C.
AND
Case No. 16463/24
(Freedom Under Law NPC v The Speaker of the National Assembly and
Others)
1. The decision of the
National Assembly taken on 9 July 2024 to designate the First
Respondent as one of its representatives to
the JSC is:
1.1
Declared unconstitutional and
invalid; and
1.2
Reviewed and set aside.
2. It is declared that
the National Assembly may not designate Dr. Mandlakayise John Hlophe
to serve on the Judicial Services Commission
in terms of section
178(1)(h) of the Constitution.
3. Dr Mandlakayise John
Hlophe and the Umkhonto Wesiwe Party are ordered to pay the
applicant’s costs, including the costs
reserved in Part A, on
an attorney and client scale, including the costs of two counsel on
Scale C.
MBHELE AJP
JUDGE OF THE HIGH
COURT
BASSON J
JUDGE OF THE HIGH
COURT
MUDAU J
JUDGE OF THE HIGH
COURT
Appearances:
|
THE
|
|
|
Counsel:
|
Ismail
Michael
Eshed
|
|
Instructed
|
Minde
Elzanne
|
|
FUL’S
|
|
|
Counsel:
|
Wim
Max
Sarah
Stuart
Sechaba
|
|
Instructed
|
Nortons
Anton
|
|
CW’S
|
|
|
Counsel:
|
Geoff
Pranisha
Mitchell
|
|
Instructed
|
Norton
Laura
|
|
THE
|
|
|
Counsel:
|
Adv
Adv
|
|
Instructed
|
The
|
|
|
|
|
Counsel:
|
Dali
Lerato
Libongo
|
|
Instructed
|
KMNS
Thabo
|
|
|
|
|
Counsel:
|
Thabani
M.
N.
|
|
Instructed
|
B
Barnabas
|
Date of
Hearing:
25 February
– 27 February 2025
Date of
Judgment:
2 June 2025
[2]
Hoexter and Olivier The
Judiciary in South Africa (Juta
& Co Ltd, Cape Town 2014) at xxvii. As former
Chief Justice Ngcobo has remarked, the role played by
the
judiciary is of far-reaching importance: “The judicial branch
is responsible not only for resolving disputes between
private
parties, but also for resolving disputes between government and
private parties and even disputes between different branches
or
sectors of government. It has the responsibility to protect
individuals from government overreaching, and it plays an important
role in our country’s constitutional balance of powers.”
(Ngcobo “Sustaining Public Confidence in the
Judiciary: An
Essential Condition for Realising the Judicial Role” (2011)
128 SALJ 5 at 9).
[3]
Dr
Hlophe was appointed a judge in the Cape Provincial Division in 1995
and elevated to Judge President of the Division
in 2000.
[4]
Act 108 of 1996 (“the
Constitution”).
[5]
We
have drawn extensively from heads of argument prepared by counsel
for the respective parties, for which we express appreciation
particularly on costs.
[6]
Since 2008, when the
complaint was made to the JSC, the process has been marred by
litigation. We do not intend to refer to that
process in detail, as
it is a matter of public record.
[7]
Tribunal Decision dated
9 April 2021.
[8]
Tribunal Decision at
para 123. Dr
Hlophe’s application
to review and set aside the finding of the JSC that he was guilty of
gross misconduct was dismissed by a Full Bench
of the High Court in
Hlophe
v Judicial Service Commission and Others [2022]
ZAGPJHC 276; [2022] 3 All SA 87 (GJ).
[10]
The
fourth application, Afriforum
v Speaker and Others (“the
Afriforum application”),
is
not before us.
[12]
The
Full Court’s judgment has been reported as Democratic
Alliance v Hlophe and Others; Corruption Watch v Hlophe and Others;
Freedom Under Law v Hlophe and Others
[2024]
ZAWCHC 282; 2025 (1) SA 169 (WCC) (Democratic
Alliance v Hlophe).
[13]
[2012]
ZASCA 15; 2012 (3) SA 486 (SCA); 2012 (6) BCLR 613 (SCA): “[44]
All
political parties participating in parliament must necessarily have
an interest in ensuring that public power is exercised
in accordance
with constitutional and legal prescripts and that the rule of law is
upheld. They represent constituents that collectively
make up the
electorate. They effectively represent the public in
parliament. It is in the public interest and of direct
concern to
political parties participating in parliament that an institution
such as the National Prosecuting Authority (NPA)
act in accordance
with constitutional and legal prescripts. It can hardly be argued
that citizenry in general would be concerned
to ensure that there
was no favouritism in decisions relating to prosecutions.
Few members of political parties or members
of the public have
the ability, resources or inclination to bring a review application
of the kind under discussion.”
[14]
We
address the public’s interest in the functions of the JSC in
greater detail below.
[16]
[1995]
ZACC 13; 1996 (1) SA 984 (CC); 1996 1 BCLR 1 (CC).
[18]
[2010]
ZACC 4; 2010 (3) SA 293 (CC);
2010 (5) BCLR 391 (CC): “[33] The concession that the NGOs
have standing was properly made. Our Constitution adopts a broad
approach to standing,
in particular, when it comes to the violation
of rights in the Bill of Rights. This is apparent from
the standing
accorded to persons who act in the public interest.
This ground is much broader than the other grounds of standing
contained
in s 38. The NGOs have standing on at least two
grounds.
[34]
First, they are litigating in the public interest under s 38(d) of
the Constitution. The NGOs contend that the exclusion
of victims
from participation in the special dispensation process violates the
Constitution, in particular, the rule of law.
They submit that, as
civic organisations concerned with victims of political violence,
they have an interest in ensuring compliance
with the Constitution
and the rule of law. Second, they are litigating in the interest of
the victims under s 38(c). The victims
whose interests the NGOs
represent were unable to seek relief themselves because they were
unaware that applications for pardons
affecting them were being
considered. The process followed by the President made no provision
for the victims to be made aware
of the applications for pardons,
nor to be given the opportunity to make representations.”
[19]
Act 3
of 2000 (“PAJA”).
[20]
They
have accused the DA of pursuing the litigation only because it is
racist and described it as a “lynching”. They
have
accused this Court of being “incompetent, politically driven
and compromised”.
[21]
We
address this issue in greater detail below.
[22]
Rules
of the National Assembly, 9th
Edition,
26 May 2016 (“NA Rules”).
[23]
The
FF+, the ACDP, the IFP, ActionSA, Rise Mzansi and BOSA all appeared
to support the DA when the objection was raised.
[24]
ActionSA,
UDM, Build One South Africa made similar statements cautioning
against the designation of Dr Hlophe.
[25]
Other
parties such as the EFF, Al-Jama-ah, UAT also supported the
nomination of Dr Hlophe.
[26]
In a letter dated 9 July
2024.
[28]
1992 (3) SA 108 (C) at 117E-G. This matter was confirmed on appeal.
See: Minister
of Justice v Hofmeyr (240/91)
[1993] ZASCA 40; 1993 (3) SA 131 (AD); [1993] 2 All SA 232 (A)
[32]
Helen
Suzman Foundation (above
n1) at para 32.
[33]
Section
178(4) of the Constitution.
[34]
Helen
Suzman Foundation (above
n1) at para 37.
[35]
Ex
Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa
[1996] ZACC 26; 1996 (4)
SA 744 (CC); 1996 (10) BCLR 1253 (CC) (“First
Certification case”):
“[124]
Appointment of Judges by the Executive or a combination of the
Executive and Parliament would not be inconsistent with the
CPs. The
JSC contains significant representation from the Judiciary, the
legal professions and political parties of the opposition.
It
participates in the appointment of the Chief Justice, the President
of the Constitutional Court and the Constitutional Court
Judges, and
it selects the Judges of all other courts. As an institution it
provides a broadly based selection panel for appointments
to the
Judiciary and provides a check and balance to the power of the
Executive to make such appointments. In the absence of
any
obligation to establish such a body, the fact that it could have
been constituted differently, with greater representation
being
given to the legal profession and the Judiciary, is irrelevant. Its
composition was a political choice which has been made
by the CA
within the framework of the CPs.”
[36]
Hlophe v Judicial
Service Commission (above
n8) at para 32.
[38]
Van Rooyen (above
n30) at para 32.
[41]
Van
Rooyen (above
n30) at para 32
the
Constitutional Court endorsed the finding in Valente
v The Queen (1986)
24 DLR (4th) 161 (SCC) at 172 that the test for independence should
include the public.
[42]
Section
174(1) of the Constitution. See also the JSC’s Summary and
Explanation of the Criteria and Guidelines used by the
Judicial
Service Commission when considering Candidates for Judicial
Appointment.
[43]
S v Mamabolo [2001]
ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (Mamabolo)at
para 16: “It is in these terms by far the weakest of the three
pillars; yet its manifest independence and authority are
essential.
Having no constituency, no purse and no sword, the Judiciary must
rely on moral authority. Without such authority
it cannot perform
its vital function as the interpreter of the Constitution, the
arbiter in disputes between organs of State
and, ultimately, as the
watchdog over the Constitution and its Bill of Rights – even
against the state.”
[44]
Section
39 of the Constitution.
[46]
Helen
Suzman Foundation (above
n1) at paras 36 – 7.
[48]
Emphasis
added and footnotes omitted.
[49]
Helen
Suzman Foundation (above
n1) at para 37.
[50]
Hlophe v Judicial
Service Commission (above
n8).
[52]
Principle (ii) the
Lilongwe Principles.
[54]
Principle (i) the
Lilongwe Principles.
[55]
Dr
Hlophe’s Answering Affidavit to FUL at para 102.
[58]
FUL
Founding affidavit at para 104.
[59]
On 27
September 2024, a Full Court sitting in the Western Cape interdicted
and restrained Dr. Hlophe from “participating
in the processes
of” the JSC: Democratic
Alliance v Hlophe (above
n12).
[60]
Umkhonto
Wesizwe
Party
and
Another
v
Judicial
Service
Commission
and
Others
[2024]
ZAGPJHC 992 at paras 22 – 3.
[61]
On 6
February 2025, MK lodged an out-of-time application for leave to
appeal to the Constitutional Court against the Full Court’s
Part A judgment.
[62]
Democratic
Alliance v Hlophe and Others,
unreported judgment of the Western Cape Division, Cape Town, case
numbers 16170/2024, 16771/2024, 16463/2024 (20 December 2024)
at
paras 42-55.
[64]
Hlophe v Judicial
Services Commission (above
n8) at para 130.
[65]
Dr
Hlophe’s Answering Affidavit to FUL at para 120.
[67]
Dr
Hlophe to FUL Part A AA at para 133.
[69]
Mamabolo
(above n43).
[71]
Dr
Hlophe in FUL Part A AA at para 27.
[73]
Dr
Hlophe answering affidavit in FUL Part A at para 25.
[74]
See,
for example, Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others (No 2) [2014]
ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC).
In
particular, the Court must consider the consequences of any remedial
action under section 172(1)(b).
[75]
FUL’s
supplementary affidavit.
[76]
Democratic
Alliance v Hlophe (above
n12) at para 57.
[78]
Referring to Qozoleni
v Minister of Law and Order 1994(3)
SA 625(E); 1994(1) BCLR 75(E) at 80.
[79]
Referring to S
v Moagi Attorney-General v Moagi 1982(2)
Botswana LR 124 184.
[81]
Justice
Alliance of South Africa v President of Republic of South Africa and
Others, Freedom Under Law v President of Republic
of South Africa
and Others, Centre for Applied Legal Studies and Another v President
of Republic of South Africa and Others [2011]
ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC) at para 20.
[82]
SA
Broadcasting Corporation SOC Ltd and Another v Motsoeneng and Others
[2024]
ZAGPJHC 688 ; 2025 (2) SA 571 (GJ) at para 7 with reference to
State
Information Technology Agency SOC Limited v
Gijima Holdings (Pty) Limited [2017]
ZACC 40 ;2018 (2) SA 23 (CC); 2018 (2) BCLR 240.
[85]
[2004] ZACC 20; 2005 (2)
SA 359 (CC); 2005 (4) BCLR 301 (CC) at para 108. ; the
Constitutional Court held: “It should also be borne in mind
that declaratory relief is of particular
value in a constitutional
democracy which enables courts to declare the law, on the one hand,
but leave to the other arms of
government, the executive and the
legislature, the decision as to how best the law, once stated,
should be observed.”
[86]
Advisory
opinion on the assessment, under Article 3 of Protocol No. 1 to the
Convention, of the proportionality of a general prohibition
on
standing for election after removal from office in impeachment
proceedings. The advisory opinion was sought by the Lithuanian
Supreme Administrative Court and is dated , 8 April 2022.
[87]
Paksas v Lithuania
(34932/04). Judgment
(Merits and Just Satisfaction) European Court of Human Rights (Grand
Chamber) 6 January 2011.
[88]
FUL’s RA, at para
79.
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