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

The Judge President of the Western Cape High Court, Judge President Hlophe, sought leave to appeal to the Constitutional Court against two judgments of the Supreme Court of Appeal. These judgments set aside a decision of the Judicial Service Commission (JSC) of 15 August 2009 which had dismissed both a complaint by several Constitutional Court Justices that Hlophe attempted to improperly influence them in pending corruption cases, and a counter-complaint by Hlophe alleging that the Justices violated his dignity by issuing a media statement. The SCA held, on different grounds, that the JSC decision was invalid and required reconsideration. When the matter reached the Constitutional Court, a procedural crisis arose: many Justices were either complainants, witnesses, or involved in mediation in the underlying JSC dispute, raising questions of recusal and whether the Court could lawfully constitute a quorum to hear the applications.

Leave to appeal was refused in both applications.

This case is significant for clarifying the limits on appointing acting judges to the Constitutional Court, affirming the minimum quorum requirements, and articulating the cautious application of the doctrine of necessity in recusal situations. It underscores the Court’s commitment to judicial impartiality while ensuring that constitutional deadlock does not undermine the administration of justice.