Judge President Mandlakayise John Hlophe v Premier of the Western Cape Province and Others; Judge President Mandlakayise John Hlophe v Freedom Under Law and Others

The applicant, Judge President John Hlophe, sought leave to appeal to the Constitutional Court against two judgments of the Supreme Court of Appeal (SCA) that set aside a decision of the Judicial Service Commission (JSC). The JSC decision had dismissed a complaint by several Constitutional Court Justices alleging that Hlophe attempted to influence them in pending corruption matters involving the then President, as well as Hlophe’s counter-complaint that the Justices violated his dignity by issuing a media statement about their complaint. The SCA, in two separate matters brought by the Premier of the Western Cape and Freedom Under Law, found procedural and rationality defects in the JSC’s handling of the complaints and set aside its decision, requiring reconsideration. When the matter reached the Constitutional Court, a difficulty arose because many of its members were either complainants in the JSC process or involved in attempted mediation, raising recusal concerns that threatened the Court’s quorum.

Leave to appeal was refused. The judgments and orders of the Supreme Court of Appeal therefore remained in force, requiring the Judicial Service Commission to reconsider the complaints as directed by the SCA.

This case is significant for clarifying the limits of acting appointments to the Constitutional Court, the application of recusal principles at the highest judicial level, and the doctrine of necessity. It underscores that the Constitutional Court will decline to hear matters where its impartiality could reasonably be questioned and where effective relief already exists through lower court decisions. The judgment also reinforces constitutional safeguards around judicial discipline and institutional integrity.