MK Party leader John Hlophe is “uniquely disqualified from appointment to the JSC”, says Freedom Under Law (FUL) in written legal argument to the Western Cape High Court.
“The purpose of the JSC is to foster public confidence and respect for the judiciary and the rule of law. That purpose is undermined by appointing a person who has demonstrated a complete disrespect for the integrity of our judiciary,” says FUL.
Hlophe, formerly judge president of the Western Cape High Court, was the first judge to be impeached in democratic South Africa, after a finding of gross misconduct by the JSC. However, months after his impeachment he entered parliament as an MK Party MP and was then designated by the National Assembly to sit on the JSC — the body that interviews and recommends candidates for judicial appointment.
The constitution says the JSC must include six members of the National Assembly. Three of these must be from opposition parties. In the past, the National Assembly’s JSC designation process was uneventful, with opposition parties nominating their candidates and these being accepted by the House. This time, the DA objected to Hlophe’s designation and there was a debate and a vote. Those in favour of the list as it stood won the day.
Three separate and urgent court cases were immediately launched — by FUL, the DA and Corruption Watch — and an interim interdict was granted, temporarily preventing Hlophe from participating in the JSC. This week, the high court will hear argument on whether Hlophe should be permanently barred from the JSC.
FUL, the DA and Corruption Watch argue the decision by the National Assembly was unlawful and irrational and have asked the court to set it aside. The DA and Corruption Watch want the court to also declare that the National Assembly may not designate Hlophe to the JSC.
The MK Party and Hlophe argue that there is nothing in the constitution or the law preventing Hlophe from being designated to the JSC and that the process followed by the National Assembly was entirely rational. This is a political dispute — one that was lost by the DA on the floor of parliament, argues Dali Mpofu SC on behalf of the MK Party.
The DA, Corruption Watch and FUL argue that the National Assembly’s decision was based on a “material error of law”. They say the record of the debate in parliament shows MPs were under the mistaken view that they were bound by the long-standing parliamentary “convention” to accept whoever was nominated by opposition parties and that they had no discretion to reject the MK Party’s choice.
Referring to extracts from the debate, the DA’s counsel, Ismail Jamie SC, said: “These statements make plain that these parties believed there was no option but to support MK’s chosen nominee.”
But Mpofu says “nothing could be further from the truth”. He says all the objections against Hlophe in court were raised in parliament — “raised, considered and roundly defeated in a democratic process carried out in terms of the rules. The applicants are aggrieved by the outcome, not the process”. If the exercise had been one of rubber-stamping, it would not have been put to a vote, he argues.
It is absurd to appoint a former judge, who has been impeached ... to the body responsible for determining whether prospective judges are fit and proper for appointment
— Geoff Budlender SC
FUL, Corruption Watch and the DA argue there is an implied constitutional requirement that JSC commissioners are “suitably qualified” or “fit and proper” to select judges.
“It is absurd to appoint a former judge, who has been impeached ... to the body responsible for determining whether prospective judges are fit and proper for appointment. Dr Hlophe is patently not capable of contributing to the proper assessment of judicial candidates,” says Corruption Watch’s counsel, Geoff Budlender SC.
But the MK Party argues that the purpose of the constitution’s subsection that requires half of the JSC MP commissioners to be from opposition parties is “essentially a minority protection provision”.
“Without the subsection no member of an opposition party would ever sit on the JSC,” says Mpofu. Hlophe’s designation fulfils this purpose, he argues.
Thabani Masuku SC, Hlophe’s counsel, adds that this is why parliament’s long-standing “convention” not to interfere with the nominations of opposition parties is a rational one. “If the majority party could veto the choice of opposition parties it would undermine the purpose of section 178(1)(h),” he argues.
However, FUL argues that the purpose of the JSC is to “safeguard judicial independence and ensure public confidence in the appointment process of judges”. The purpose of sending MPs to the JSC is an important one: to “inject a democratic element into the selection process”.
But that “democratic purpose is not achieved by appointing an individual who undermines the public’s confidence in the JSC,” say FUL’s counsel, Wim Trengove SC and Max du Plessis SC.
The MK Party argues that the MPs that sit on the JSC are not there as judges, but as elected representatives. Their “employment history” is not relevant. Once someone is an MP they are entitled to all the rights and privileges that flow from that role. To bar Hlophe from the JSC is to limit his own constitutional rights that flow from the right to stand for political office.
The case will be heard on Tuesday and Wednesday this week.
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