The appointment of the MK Party’s John Hlophe to the Judicial Service Commission (JSC) “would make a mockery of the process of the JSC”, the Western Cape High Court heard on Tuesday.
“Where in the world does one have a situation that someone is removed from the judiciary through impeachment for gross misconduct, and then says I want to be appointed to nominate my successor?” said Geoff Budlender SC on behalf of NGO Corruption Watch.
Corruption Watch was one of three organisations that have asked the court to set aside the National Assembly’s decision to choose Hlophe as one of its six members to sit on the JSC, the body that interviews and recommends candidates for judicial appointment. Hlophe, formerly judge president of the Cape court, was impeached for gross misconduct last year — only to return to public life as an MP for the MK Party a few months later.
The constitution says six JSC commissioners must be members of the National Assembly and that three of these must come from opposition parties. Previously, the National Assembly’s process to select its JSC commissioners was uneventful. But this time, when the MK Party nominated Hlophe, the DA objected and there was a debate and vote. When those in support of Hlophe won the day, the DA, Freedom Under Law and Corruption Watch urgently went to court.
An interim interdict temporarily preventing Hlophe from participating in JSC interviews was granted by the high court in September last year and JSC interviews went ahead in October without him. It was at these interviews that a new judge president for the Western Cape was interviewed and recommended.
On Tuesday, the high court heard arguments on why parliament’s decision to designate Hlophe for the JSC was unlawful, and why — argued the DA and Corruption Watch — the court should declare that Hlophe may not be appointed to the JSC.
Unfortunately, he is different. So he is different and he is treated differently. There is nothing wrong with that.
— Geoff Budlender SC
Freedom Under Law, on the other hand, was only asking the court to set aside the National Assembly’s decision, saying the decision should be remitted back to parliament.
FUL’s counsel, Wim Trengove SC, argued that the majority of the members of the National Assembly did not realise they had a discretion on whether to select Hlophe and instead felt “bound” by the MK Party’s choice of Hlophe. They failed to exercise their discretion, and “that is fatal to the decision”, argued Trengove.
He referred to parts of the record of the debate in parliament and a letter from the speaker to various NGOs that had raised concerns about the possibility of Hlophe being sent to the JSC. Trengove said the letter had got the law wrong: the speaker said there were only two criteria for the National Assembly’s JSC designees — that they were members of parliament and that three of them were from opposition parties.
But the Constitutional Court had previously said in a judgment that, bearing in mind the importance of the JSC’s function, it did “not think it unreasonable to expect that those that bear the responsibility of nominating, designating or electing individuals for membership of the JSC will take their responsibility seriously and identify people who are suitably qualified for the position”.
But Hlophe’s counsel, Thabani Masuku SC, said the only qualifications a person needed to be sent by the National Assembly to the JSC was that they be an MP. The constitution set out who was disqualified from being an MP, and impeached judges were not on that list, he said. “Let’s look at the constitution because that’s what binds us,” he said.
Masuku said if anyone wanted additional requirements, on top of those set out in the constitution, “then change the law”. Asked by the bench how he would get around the judgment referred to by Trengove, he said all that the judgment meant when it specified “suitably qualified”, was that they should be qualified to be MPs.
Budlender had earlier argued that on Hlophe and the MK Party's understanding of the law, it would mean that a child molester or a judge who had been impeached for taking a bribe could get sent to the JSC. The National Assembly’s JSC selection process would be like “throwing darts at a board”, he said.
But Masuku said these were crimes and if such a person had been convicted for these offences, then they would be precluded by the constitution from being an MP — if the offence had happened within the cut-off time set out in the constitution.
Masuku argued that Hlophe’s equality rights were being infringed by the arguments being made by the DA, FUL and Corruption Watch because they wanted the law to treat Hlophe differently to the other five MPs who had been designated to the JSC.
But Budlender said when the high court granted an interim interdict, it had treated Hlophe differently, but the difference did not amount to unfair discrimination. Hlophe was treated differently “because of his particular conduct”.
“He was a person who had been impeached as a judge; who had been found to have threatened and interfered with the independence and impartiality [and] dignity and effectiveness of the Constitutional Court; who had been found to have threatened public confidence in the judicial system ... Unfortunately, he is different. So he is different and he is treated differently. There is nothing wrong with that,” said Budlender.
However, to succeed in claiming discrimination, he would have to show he was treated differently on the grounds of race, gender, religion or another prohibited ground under the constitution. He had not done that, said Budlender. Nor had he shown that he had not got equal protection of the law. “He is here [in court],” said Budlender. Just because a case was decided against him, it did not mean he did not get equal protection of the law.
Arguments will continue on Wednesday.
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