Hlophe is being subjected to law of the jungle, says Mpofu

Impeached judge John Hlophe was subjected to the “law of the jungle” after being condemned, vilified and “booted out of his job”, and those seeking to stop him from serving on the Judicial Service Commission (JSC) “wanted to dig the grave and kill him again”.

“They call it the rule of law. The rule of law my foot. It's the law of the jungle and we are not going to have it here,” advocate Dali Mpofu, on behalf of the MK Party (MKP), said in his opening remarks in the Western Cape High Court on Friday.

Hlophe represents the party in parliament and was nominated to sit on the JSC, a decision ratified by a majority vote in the National Assembly.

The MKP and Hlophe are opposing three separate bids (heard at the same time) by the DA, Corruption Watch and Freedom Under Law (FUL), for an interdict, alternatively a final order, overturning the National Assembly's designation of Hlophe to the JSC, which interviews and recommends judges for appointment.

They have argued the National Assembly’s decision was irrational and a disgraced judge should not be allowed to judge the suitability of others. 

Mpofu argued before judges Selby Baqwa, Johannes Daffue and Colleen Collis that there was “something fishy” about the application, and said a court should never allow itself to become the appeal tribunal of the National Assembly.

He said the DA had run to the court after losing the vote on whether Hlophe should be designated to the JSC.

“We are only here because the DA lost a democratic vote in parliament. You cannot overrule the will of the people. They have the right to be wrong.”

He said the National Assembly’s decision was “political”, as was the decision to impeach Hlophe by the last parliament.

Earlier on Friday Hlophe’s advocate Thabani Masuku said his client was challenging the lawfulness of his impeachment in the courts because there were dissenting views on what gross misconduct was in the JSC and in the National Assembly, though the state had refused to give him further funding for his legal challenges.

He said his punishment ended with his impeachment and there was no law preventing his designation to the JSC.

While FUL had submitted Hlophe was “unrepentant”, Masuku said: “They have not told us which altar of which God he must go to.

“It is an extraordinary submission to make in light of what is his commitment to judicial independence. He has said he will make sure no other judge will be subject to the tyranny of the impeachment he was subjected to.”

Masuku said the applicants were seeking a “special procedure” to be adopted in the National Assembly for Hlophe.

“A court cannot do this. A court must give significant deference to the autonomy of the National Assembly.”

Masuku said should the court grant the interdict, it would be dictating to the National Assembly “which has an impact on the rights of all members of all political parties”.

“The interdict would violate a number of his rights, and it would violate the National Assembly’s authority,” Masuku said, adding that whether Hlophe won or lost the case, he should be awarded costs because “he has been dragged here”.

The hearing will continue with further arguments by Mpofu and replies from the applicants. 

Judgment is expected to be reserved, but the parties have asked for a ruling to be given before the JSC meets in October to interview candidates for judicial appointments.

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