WC High Court judgment interdicting Hlophe a win for the rule of law

27 September 2024

Corruption Watch (CW) welcomes the judgment handed down today, 27 September 2024, by the full bench of the Western Cape High Court in the matter of Corruption Watch v Speaker of the National Assembly and others. Three related applications were brought by CW, the DA, and Freedom Under Law.

The High Court granted the relief sought by CW by interdicting Dr Hlophe from participating in the Judicial Services Commission (JSC), concluding that a strong prima facie case had been made warranting this relief. The interdict is pending a full hearing of CW’s challenge to the merits of the National Assembly’s (NA) decision to designate Dr Hlophe to the JSC, as well as the outcome of further proceedings in the High Court and/or related applications lodged with the Constitutional Court.

Among the reasons for granting the relief were that the NA had failed to recognise that it had the discretion to not follow the dictates of a ‘convention’ by merely accepting the MK Party’s nomination of Dr Hlophe to the JSC because it is an opposition party and therefore entitled to make an appointment. Conventions or rules are always subject to the Constitution, the rule of law, rationality, and legality, and in this matter the NA was required, when exercising its discretion, to uphold its obligations under sec 165(4) of the Constitution to support and protect the independence and dignity of the courts.

The JSC performs a vital role in the appointment of judges, and it was therefore critical that the designation process be taken seriously and that only those suitably qualified persons should be appointed. As Dr Hlophe had been removed as a judge for serious misconduct, his appointment undermined the independence, dignity, and effectiveness of the courts.

The judgment is a strong indication of the importance of the rule of law and that the courts will subject state action to the principles of legality and rationality, rather than defer to ill-considered decision-making by Parliament.

The Corruption Watch legal team was led by Advocates Geoff Budlender SC, Pranisha Pillay, and Mitch de Beer, instructed by Laura Macfarlane and Jason Whyte of Norton Rose Fulbright’s Impact Litigation team.

Listen to a soundbite from CW ED Karam Singh.