In the past week, impeached former public protector Busisiwe Mkhwebane resigned as a member of the Economic Freedom Fighters and a member of Parliament. Before the ink on her resignation letter has dried, there is already talk of her replacing fellow impeached former Western Cape judge president John Hlophe as a member of the Judicial Service Commission (JSC) representing the uMkhonto Wesizwe party (MK party).
Can she actually be a member of the JSC? The short answer is no, she can’t. Not for now, at least. The longer answer is more complicated.
Section 178 of the Constitution establishes the JSC as an independent body to advise the government on “any matter involving the judiciary or the administration of justice”. The JSC is centrally involved in the appointment of judges, and their discipline for misconduct. In these roles, the JSC plays a critical role in ensuring the independence, effectiveness and dignity of the courts, as contemplated by section 165(4) of the Constitution.
Chaired by the Chief Justice, the JSC is made up of 23 commissioners: four practising advocates and attorneys, three judges, a law professor, four presidential nominees (usually senior lawyers), the minister of justice, and 10 members of Parliament (six from the National Assembly, four from the National Council of Provinces).
Of the six from the National Assembly, at least three must come from opposition parties. The MK party therefore holds one seat, alongside ActionSA and the EFF as opposition parties to the GNU (in relation to the JSC, ANC and DA).
The MK party had previously nominated Hlophe as its representative. The National Assembly designated him a member of the JSC in July 2024. However, the Democratic Alliance and NGO Freedom Under Law filed a court application to review and set aside the National Assembly’s decision to designate Hlophe as irrational to Parliament’s constitutional duty to safeguard the independence and effectiveness of the courts. In the meantime, in part A of its application, the DA obtained an interdict to stop Hlophe from serving on the JSC until the review application was complete.
Considering the delays that would be caused by part B of the DA’s review application and any further appeals, the MK party decided on a “strategic retreat”. This retreat entails Hlophe resigning as a member of the JSC to allow the MK party to nominate another member in his stead.
This was necessary as, until reviewed and set aside by a court, Parliament’s original decision to designate Hlophe to the JSC stood, even though the interdict barred him from participating. Hlophe’s resignation triggers a vacancy, enabling the National Assembly to designate another member of the MK party to serve on the JSC.
A widely circulated poster suggests that this would be Mkhwebane. But it’s easier said than done.
- First, Mkhwebane would have to be a member of the MK party and be designated as an MP. The MK party currently has no vacancies available on its MP list. The Electoral Act bars the party from substituting any MP within 12 months of the May 2024 election. They would therefore have to force one of their current MPs to resign from the party to make way for Mkhwebane. The legality of this is questionable. It would no doubt be a cynical abuse of the law. But unless Parliament stops it, the MK party can do it.
- Second, Mkhwebane would have to be sworn in as an MP and nominated by the MK party to serve as its representative on the JSC. This is relatively easy, but the difficulty comes in the next stage.
- Third, the National Assembly, in a plenary sitting, must resolve by majority vote to designate Mkhwebane as its representative on the JSC. At this stage, all political parties have a chance to object. Upon objection, the designation has to be put to a vote. This is the same process that was followed with Hlophe’s original designation in July. However, there have since been important legal developments which would make Mkhwebane’s designation more difficult.
In the DA’s interdict case, the Western Cape High Court made it clear that the National Assembly cannot simply rubber-stamp political parties’ selections, but must apply its mind properly to the suitability of the person to be designated. In this regard, the court found that the National Assembly’s designation to the JSC of someone who has been impeached for serious misconduct [Hlophe] “will inevitably undermine the independence, dignity and effectiveness of our courts”.
Mkhwebane is in an even worse position than Hlophe. She was impeached for both serious misconduct and incompetence. It would therefore fly in the face of the Western Cape High Court’s judgment if the National Assembly found her suitable to serve on the JSC, especially while the question of the National Assembly’s power to designate is still pending in the courts. It is highly doubtful Parliament’s Legal Services Unit would advise the Speaker to schedule the vote, as she would risk committing the crime of contempt of court.
The bottom line of all this is that, pending the conclusion of the DA’s case challenging Parliament’s original decision to designate Hlophe as a member of the JSC, Mkhwebane will not be able to take up the MK party’s seat on the JSC. The MK party is, of course, free to nominate any of its other members. Its political rights therefore remain intact. DM