Western Cape High Court rules against Dr John Hlophe's appointment to Judicial Service Commission
The court's decision, handed down on Monday, underscores the imperative of judicial integrity and the constitutional responsibilities of South Africa's legislative body.
In a judgement that has reignited debates about the judiciary's independence, the High Court found that the National Assembly (NA) had failed to appropriately exercise its discretion when approving Hlophe's appointment, an oversight that effectively undermined the credibility of the JSC.
The court's order reflects a broad consensus that rigorous standards must be upheld in judicial appointments, especially for a body entrusted with safeguarding the country's constitutional commitment.
The implications of the ruling are profound, as the JSC is constitutionally mandated to recommend judicial appointments and hold judges accountable. The court stated that failing to act responsibly in Hlophe's nomination could jeopardise the very independence the JSC is supposed to protect.
Hlophe was nominated to the JSC last year but subsequently resigned amidst a flurry of controversy.
The court explicitly stated that "Dr. Mandlakayise John Hlophe may not be designated to serve on the Judicial Services Commission in terms of section 178(1)(h) of the Constitution," marking a rare judicial rebuke of a parliamentary appointment.
The judgment comes after a legal challenge by organisations including Freedom Under Law, Corruption Watch, and the Democratic Alliance (DA).
These groups argued that including an impeached judge in the JSC threatened the integrity and independence of South Africa's judiciary.
'The judiciary is essential to the maintenance of constitutional democracy,' they asserted, solidifying their stance against any attempts that could compromise its impartiality.
Dr Hlophe became South Africa's first judge to be impeached in its democratic era in February 2024, following charges stemming from a misconduct case dating back to 2008.
He faced serious allegations of attempting to improperly influence Constitutional Court Justices Bess Nkabinde and Chris Jafta in a matter concerning then-President Jacob Zuma.
After a protracted legal battle, the JSC finally recommended his removal in 2021, with Parliament voting in favour of impeachment only three years later.
In response to the court's ruling, DA federal chairperson Helen Zille stated, "The High Court order to bar an impeached judge from serving on the Judicial Services Commission is a victory for the rule of law and the Constitution."
She emphasised that the JSC must consist of members who are "fit and proper" and hold the public's confidence, reflecting the broader societal imperative for transparency and accountability within the judiciary.
This latest development stands as a testament to the ongoing efforts to reinforce the principles of lawful governance within South Africa, propelling the conversation about judicial integrity into the national spotlight once more.
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Compliance Consistent with the constitutional mandate that legislation must regulate funding for national and provincial elections, the IEC has established a unit dedicated to administering the political funding project. Parliament has yet to consider whether it should regulate political funding of local government elections. If the IEC receives illicit funding or misallocates funds, the rules are so precise that illegal transactions would be easily detected. Furthermore, receipts and allocations are made electronically, not as cash in brown paper bags. They generate an electronic trail. Illicit transactions would show up in the annual audits. Anyone aggrieved by an allocation may ask the Electoral Court on review or appeal to correct any decision of the IEC. Annual audits by the Auditor-General and quick corrective measures by the court would mitigate the risk to the integrity of the IEC. The IEC is a modern institution evolving in the technology-driven information age. To execute its constitutional mandate, it must be ever vigilant of its own limitations, advance its capabilities and remain responsive to a fast-changing, high risk financial environment. Building in self-correcting measures of constantly monitoring, measuring and innovating mitigates risks. If the IEC fails to self-correct, the Electoral Court could compel it to comply. In 2024, 14 out of 15 represented political parties reported on their donations received and spent. While such a high level of formal compliance is commendable, authenticating the amount of donations actually received in both cash and kind is challenging. Political representatives do not have similar internal self-correcting mechanisms as the IEC to safeguard against underhand funding. Underhand funding Superficially, a political party's reporting may look compliant. However, on comparing the information in the report with the reality, it appears in some instances that the amount of donations disclosed as received and spent do not match what seems to have been spent. Donations in kind tend to escape the reporting radar. Thus, a political representative could trigger an investigation if, e.g. it uses a posh sound system, busses in crowds, and distributes thousands of T-shirts and food hampers at a mass rally, the costs of all of which manifestly exceed the amount of the disclosed donations and expenses. Vote buying is an internationally prohibited transaction. The prospects of finding accounting records for prohibited transactions are remote. So too is funding from foreign governments and their agencies masquerading as nonaligned organisations. Exploiting gaps in the Political Funding Act subverts not only the letter and spirit of the law, but democracy itself. The minimum reporting threshold of above R100,000 is avoided by a donation of say, R99,000. If a donor makes several payments of R99,000, they need not appear in the reporting to the IEC. However, scrutiny of the financial statements would expose the political representatives to an investigation. Similarly, equity, fairness and the rule prohibiting donations above R15-million from a single person or entity could be subverted when, say, members of the same family, or the CEO of an entity and the entity itself, each donate the maximum allowed to a political representative. While these donations are legal, they could erode the purpose of the Political Funding Act to curb undue influence exerted by the elite. Low polls The greatest risk to sovereignty is the failure or refusal of the people to participate in elections. Whether as people standing for elections, volunteers campaigning for democracy and voters supporting their preferred representatives, their non-participation, irrespective of the reasons, would be the death of democracy. Plummeting polls are clear evidence of the people's disillusionment. Disillusionment would follow those political representatives who misuse the funding or fail to convince the people of the benevolence, competence and capacity of state institutions to deliver their livelihood rights to food, water, health, housing, education and security. Unless elections offer well-meaning, capable political representation as options, disillusionment in the state would ultimately erode its legitimacy. Research by the Human Sciences Research Council found 'a sense of hopelessness and despondency with the country's democracy'. The council exposes the link between disillusioned voters and low polls. From the height of 64% in 1994, the Voter Satisfaction with Democracy Survey shows a drop to 25% in 2024. Unlike say, Italy, South African law does not set a minimum threshold of votes for a valid election. If such a threshold existed, and was not achieved, the elections would have to be rerun. Enforcement Enforcement of the Political Funding Act rests with the IEC. It has powers to monitor compliance and investigate complaints. If there is a failure to disclose information, the IEC can apply to the Electoral Court to compel compliance. However, to perform its Political Funding Act functions optimally, it is not enough for the IEC to establish a unit dedicated to administering political funding. The sources of funding for vote buying and other subversive transactions require extensive investigation to gather evidence to enable the IEC to enforce the act. Mere suspicion does not ground winnable cases in court. Simultaneously, the IEC cannot compromise its integrity, impartiality and independence as a service provider responsible for administering political funding. Ultimately, it is the IEC that must decide whether the funding of political representatives resulted in inclusive, free and fair elections. Therefore, the IEC's investigative functions must be bolstered with forensic capacity for it to be an effective enforcer of Political Funding Act violations. Underhand transactions require criminal investigations aimed at prosecuting offenders. Units in the police, security and prosecutorial services dedicated to electoral crimes would facilitate prosecutions. The record of a successful conviction should be allowed as prima facie proof of a Political Funding Act violation. Possibly, this would dispense with the IEC duplicating an investigation. Whistleblowers are indispensable for monitoring compliance with the Political Funding Act. They must be protected when they report underhand transactions. They have direct evidence that is required for presenting winnable cases in court. Donors should be urged to contribute to the Multi-Party Democracy Fund. This would enable equitable and proportional distribution of funding. Furthermore, it would avert suspicion of underhand funding and undue influence. While low polls could singularly frustrate democracy, political funding is not the sole cause of plummeting polls. What those other causes are leaves little to the imagination. Ultimately, if most people refuse to participate in elections, sovereignty would be scorched on the pyre of democracy. DM
