Impeachment Is Not Disqualification: An Appraisal of the Western Cape High Court’s Ruling

Abstract

The Western Cape High Court in Democratic Alliance v Hlophe and Others (16170/24) [2025] ZAWCHC 120 held that the nomination of former Judge President to the Judicial Service Commission (JSC) was unconstitutional based on his prior impeachment. The issue before the Court was whether an impeached judge may be nominated to the JSC in a non-judicial capacity. This article disagrees with the judgment and argues that the court might have misinterpreted section 177 of the Constitution by equating impeachment from judicial office with a blanket disqualification from future public service. Former Judge President would not serve on the JSC as a judge, but as a nominee under a separate constitutional provision. The article, therefore, examines the following key questions: (i) Does impeachment bar an individual from serving in non-judicial constitutional roles like an appointed member in JSC? (ii) Did the Court exceed its mandate by intruding into a space reserved for parliamentary discretion, and what about the separation of powers? (iii) Can ethical issues like fit and proper concerns alone justify disqualification for someone who was appointed as a member of JSC? The article also examines how impeached judges are treated in South African constitutional law in comparison to practices in the United Kingdom, Canada, and Ethiopia. It contends that the Court's reasoning might lack constitutional grounding and improperly converts political disapproval into legal prohibition. The article concludes that the judgment may pose a threat to the separation of powers by allowing judicial activism to override constitutionally valid parliamentary processes.