Azhar Cachalia’s call to vigilance: John Hlophe’s appointment to the JSC ‘threatens the public’s confidence in the judiciary’

“In my years on the Bench and thereafter as a member of Freedom Under Law and now the chairman of its Board, I and many others have sought to arrest the decline of the Judicial Services Commission (JSC), by raising our voices. That it has increasingly abused its power and became captured by political interests has been laid bare. It was not only the politicians on the JSC who were responsible for this. Some judges have acquiesced in this development. 

“Senior lawyers with vested interests have not only watched, but also been complicit. Some, the storied Justice Edwin Cameron recently described as “dangerous”. He trenchantly commented that: “They seek to propel (an) agenda. They are skilled liars, dissemblers, manipulators and propagandists. (They) employ the instruments of legal practice to bedevil, confuse and dismay… They have even used the JSC to wreck the advancement of conscientious and capable candidates for judicial preferment.”

Meanwhile, retired Supreme Court of Appeal Judge and chairperson of the board for Freedom Under Law, Azhar Cachalia, said at a public lecture at the Rhodes University Law Faculty on Tuesday night: “The consequence of the combined conduct of these malevolent actors, often aided and abetted by the insipid amongst them, has been a loss of public confidence in the JSC, an institution that is vital to ensure the competence of the judiciary and protect its independence from political and other interests. Without this the rule of law is imperilled.”

The full lecture is available here.

“I ask Rhodes University and the graduates from its iconic Law Faculty to be vigilant, to speak out, and not to look the other way,” Cachalia said.

Also read in Daily Maverick: Disgraced judge John Hlophe will serve on JSC after GNU fails to come together

“The Zondo Commission’s investigations revealed how key role players enabled State Capture to take hold in state entities, which Parliament, then dominated by a single party, ignored. The president undertook to act on its recommendations. 

“When the seventh Parliament was elected there was an expectation that it would act to fix the institutions that required fixing. It was hoped that Parliament would designate suitable persons to serve on the JSC – hardly a difficult task.” 

Cachalia said Parliament had failed dismally by appointing two members who clearly were not suitable, the EFF’s Julius Malema and impeached judge, now MK party MP John Hlophe.

Also read in Daily Maverick: Fix the JSC rather than banning John Hlophe from serving on it

“Malema has consistently abused his authority on the JSC. He has also been found guilty of breaching the Members of Parliament Code of Conduct; he had inappropriately questioned a judge being interviewed by the JSC in 2021 about a ruling the judge made against him (Malema) in a defamation action – a matter in which he had a personal interest. In that matter, the judge had held that Malema had defamed Mr Trevor Manuel by causing falsehoods about him to be published.     

“Turning to Hlophe again, once the Constitutional Court had invalidated (former president Jacob) Zuma’s quest to lead his newly formed party, uMkhonto Wesizwe (MK), in Parliament due to his criminal conviction for contempt of court, MK dubiously anointed the disgraced Hlophe to be its parliamentary leader, and then cynically nominated him to be one of Parliament’s representatives on the JSC. 

“Freedom Under Law and several other non-governmental organisations wrote to the Speaker to register their indignation. They cautioned that Hlophe’s appointment would subvert Parliament’s duty to guard the independence of the judiciary and be legally assailable. The Speaker responded that there was no legal requirement for persons appointed to the JSC to be ‘fit and proper’, nor any other legal impediment to his appointment. With respect, she was ill-advised,” Cachalia said.

Guilty of gross misconduct

Competence and integrity