Disgraced Judge Appointed to South Africa’s Judicial Watchdog

Formerly impeached Judge and uMkhonto WeSizwe (MK) party Chief Whip, John Hlophe, has been appointed to South Africa's Judicial Service Commission, a 23 member watchdog tasked with recommending candidates for judicial office as well as assessing complaints against the country's judges, despite being found guilty of gross misconduct by the same commission in April 2021..What You Need to Know.On July 9th, South Africa's national assembly, made up of the Government of National Unity (GNU) and the opposition, the Progressive Caucus, passed a motion to appoint Hlophe as the MK's representative on the JSC. The motion was supported by the African National Congress (ANC), Economic Freedom Fighters (EFF) and MK parties, alongside other members of the progressive caucus..Hlope's charge of gross misconduct and his impeachment as a result of the charge in February of this year stems from actions taken in 2008 during a trial against Jacob Zuma—the current leader of the MK party—and French arms company Thint..In 2008, the South African Constitutional Court was deciding Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma and Another v National Director of Public Prosecutions and Others (Thint v NDPP; Zuma v NDPP), which decided the legality of search and seizure warrants utilized by the Directorate of Special Operations (DSO), otherwise known as the Scorpions, to find evidence of unlawfulness regarding allegations of corruption between Jacob Zuma and his dealings with French arms company Thint..While the case was being decided, John Hlophe, the President of the Western Cape Division of the High Court, approached two judges on the Constitutional Court bench that was deciding the Thint v NDPP; Zuma v NDPP case, Justice Bess Nkabinde and Acting Justice Chris Jafta, and attempted to persuade them to rule in favor of Zuma..Following the tribunal finding in April 2021 that Hlophe's actions constituted gross misconduct, the judgment was upheld in August 2021 by the JSC. South African President Cyril Ramaphosa announced Hlophe's impeachment on March 2, 2022..At least six civil society groups and NGOs, such as the Council for the Advancement of the South African Constitution, Judges Matter, and the Helen Suzman and Ahmed Kathrada Foundations, objected to Parliament over the decision..The Democratic Alliance, South Africa's second-largest political party and member of the GNU, alongside the Freedom Front Plus and the African Christian Democratic Party, stated that it was not "reasonable nor rational" to appoint impeached Hlophe to the same commission that found him guilty of gross misconduct..Likewise, in their letters to parliament the NGO's and civil society groups outlined that, "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.".However, National Assembly Speaker Thoko Didiza stated today that there are only two requirements regarding the appointment of officials to the JSC. First, that the official is a member of the national assembly, and second, that half the members appointed to the JSC must come from the opposition..According to EWN, Didiza also stated that there is no specific requirement that an MP be "fit and proper.".So, What Now?.The appointment of Hlophe to the JSC highlights the difficulties faced by the Government of National Unity in coming to a consensus on contentious issues. Of note however, is the decision by the ANC to support the appointment despite Hlophe belonging to the opposition. Incidents of 'support outside of coalition lines' is likely to increase as the Unity Government continues to navigate a South African political space in which the African National Congress no longer dominates.