Appointing an impeached judge to the Judicial Service Commission (JSC) fundamentally undermined all the principles the JSC had been created to ensure: the legitimacy and effectiveness of the courts and their dignity, independence and efficiency, said Freedom Under Law (FUL) in court papers on Thursday.
This was particularly so in the case of “disgraced” former Western Cape judge president John Hlophe, said FUL.
“Dr Hlophe continues to undermine the credibility of the judiciary, even today,” said FUL’s executive officer Judith February.
He still refused to accept the findings made against him — by a Judicial Conduct Tribunal, the JSC and the National Assembly — and “publicly declares that ‘the decision to impeach me was a political one’”, she said.
FUL has urgently approached the Western Cape High Court to set aside the decision by the National Assembly to designate Hlophe as one of six MP members of the JSC. It has asked the court to order that the decision be sent back to parliament for the National Assembly to take it again “in accordance with the principles” set out in the court’s judgment.
FUL’s case is separate to the one launched by the DA last week, also in the Western Cape division, and AfriForum’s application, which was made directly to the Constitutional Court.
Hlophe is the first judge to have been impeached in democratic South Africa, after he was found to have tried, back in 2008, to influence two judges of the Constitutional Court to violate their oath of office and rule in favour of “particular litigants” in cases that were then pending before the apex court. The cases were the “Zuma/Thint matters” and it was widely believed at the time that a judgment in his favour would clear the path for Zuma, then president of the ANC, to ascend to become president of the republic.
A few months after his impeachment in February, Hlophe was made an MP for Zuma’s uMkhonto Wesizwe Party and became its leader in parliament. He was then designated by the assembly as one of its six members to sit on the body that interviews and recommends candidates for judicial appointment — “the very body that found Dr Hlophe to have committed gross misconduct,” said February.
She said FUL’s legal team was unable find any case in South Africa or the world that involved facts similar to the present one.
February’s affidavit also referred to the subsequent complaint that was made against Hlophe in 2020 by his deputy, Patricia Goliath. For that complaint, Hlophe was, before his impeachment, facing a second Judicial Conduct Tribunal (which could have led to impeachment on an entirely separate basis) over several allegations, including that he had assaulted a colleague, judge Mushtak Parker, in his chambers and had called Goliath a “rubbish” and “a piece of sh*t”.
February said Hlophe had employed “Stalingrad” legal tactics to “delay the finalisation” of his misconduct investigation and impeachment, saying they had been “particularly damaging to public confidence in the judiciary”.
She said he had conducted his defence “in a scandalous manner” and made “scurrilous and unjustified allegations” against various senior judges as well as the judiciary as a whole.
“He has done so without any factual or legal basis. Many of the cases and arguments that Dr Hlophe brought were so hopeless that his attempt to advance them could arguably be unethical,” said February.
FUL said the National Assembly’s decision to send him to the JSC was irrational in law, breached the constitutional duty to assist and protect the courts (to ensure their independence and dignity) and was based on “a material error of law”.
The decision was irrational because it was not connected to its purpose, said February. The “overarching purpose” of the composition of the JSC was “to safeguard judicial independence and to ensure public confidence in the appointment process of judges”, she said.
The appointment of Hlophe undermined that central purpose. When it came to the JSC’s MP members, the purpose was to inject a democratic element into the judicial selection process.
“However, that democratic purpose is not achieved by appointing an individual who would undermine the public’s confidence in the JSC,” she said.
February said if the constitution was read purposively and in context, it required that those appointed to the JSC should be “suitable”. This meant the National Assembly must consider candidates’ commitment to the rule of law and whether their appointment to the JSC would undermine public confidence in the JSC.
The “material error of law” by the National Assembly was made when MPs appeared to think that once Hlophe was appointed as an MP, he was automatically eligible for appointment to the JSC. This was “a fundamental error”, said February.
The assembly was also not “blindly bound to accept whichever candidate is put forward” by political parties, she said. Judgments of the Constitutional Court had said that the words used in the constitution must be read together with their purpose. The assembly was therefore required to look at the suitability of those nominated by political parties.
The text of the constitution was also clear that the power to designate MPs to the JSC was given the National Assembly, not individual political parties, she said. “The constitution does not specify which parties must designate candidates, or that the National Assembly abdicates its designation to minority parties. Yet that is exactly what the National Assembly did in this instance,” she said.
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