John Hlophe barred from upcoming JSC interviews

When the National Assembly sent the MK Party’s (MKP) parliamentary leader John Hlophe to the Judicial Service Commission (JSC), it had merely “rubber-stamped” the party’s nomination of Hlophe and failed to exercise its own discretions, the Western Cape High Court said on Friday.

The court has temporarily interdicted Hlophe from participating in the work of the JSC,  the body that interviews and recommends candidates for appointment as judges.

The order means Hlophe “may miss one or perhaps two sittings of the JSC”, but it would not prevent the JSC from doing its work, said the judgment.

Hlophe, formerly judge president of the Western Cape division, was the first judge to be impeached in democratic South Africa’s history. After his impeachment he joined the MKP as an MP and was then designated by the National Assembly as one of its six members to the JSC.

The move was urgently challenged in three separate applications to the high court by the DA and NGOs Corruption Watch and Freedom Under Law (FUL). NGO AfriForum launched its own, separate, application directly to the Constitutional Court.

In its judgment, the court said the JSC “will function in [Hlophe’s] absence, but if required, the National Assembly may always designate another MP, nominated by the opposition parties to take his place”.

The court’s interim interdict will remain in place until “Part B” of the DA and Corruption Watch court cases are decided, or if the Constitutional Court makes a decision on the merits in AfriForum’s case (it could decide not to hear it directly), whichever comes first.

In part B, the NGOs want final orders setting aside the National Assembly’s decision to designate Hlophe. FUL had asked the court for a final interdict, but “after much deliberation” the court instead postponed its case to be heard later, along with Part B of the DA and Corruption Watch cases.

In Friday’s judgment, Gauteng High Court judges Selby Baqwa and Colleen Collis and Free State high court judge Johannes Daffue said they were satisfied there was “at least a very strong prima facie case” that the decision of the National Assembly was unlawful, though this was to be finally decided in part B.

“It is evident from the [court] papers that the National Assembly failed to appreciate it had a discretion in designating MPs to the JSC, and consequently it failed to exercise such discretion and did ‘rubber-stamp’ MK’s nomination of Dr Hlophe,” said the judgment.

They rejected an argument made by Hlophe and the MKP that Hlophe’s impeachment did not prevent him from being sent to the JSC because, unlike the president (who loses all benefits and may not stand for any public office if impeached), there were no “collateral consequences” for impeached judges. The court said this was a “startling submission”.

“The JSC is not an ordinary portfolio committee of parliament but an entity established by the constitution,” said the judgment. There were “sufficient prospects” that the DA, FUL and Corruption Watch would succeed in arguing the designation of Hlophe was irrational and unreasonable because, having been impeached for misconduct, he was in no position to assess the fitness for office of judicial candidates.

His presence would undermine the legitimacy of the appointment process, the DA and NGOs had argued. The judges said their prima facie view was that the overarching purpose of the JSC’s composition was “to safeguard judicial independence and to ensure public confidence in the appointment process of judges”.

They did not agree that the only requirements for designation were that those designated must be MPs and that three of them came from opposition parties. The legitimacy of the JSC’s processes would be tainted if Hlophe were to participate in them while there was a challenge pending.

“This will undermine public confidence in the JSC,” said the judgment.

A review in due course would not protect the legitimacy of the upcoming JSC interviews.

“This is one of the clearest cases to grant a restraining order,” said the judgment.

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