The National Assembly’s decision to send the MK party’s parliamentary leader John Hlophe to the Judicial Service Commission (JSC) was irrational and “inconsistent with the dignity and independence of the judiciary”, the DA says in court papers.
Hlophe, formerly the Western Cape judge president, was the first judge to be impeached in democratic South Africa. Impeached by the National Assembly in February, he has now been designated as one of its six members to the body that interviews and recommends candidates for judicial appointment.
The DA has approached the Western Cape High Court to set aside this decision. It is a separate case to the one launched by AfriForum in the Constitutional Court, also challenging the appointment of Hlophe to the JSC. It is also expected that NGO Freedom Under Law will be launching its own case challenging the National Assembly’s decision.
In its application, the DA has asked for an urgent interim interdict — to prevent Hlophe from taking up his seat on the JSC while the DA’s case is being ventilated and finally decided, as the case is likely to be appealed one way or another.
The JSC will be holding interviews in October, including interviews for the judge president of the Western Cape High Court and four other posts on the court Hlophe used to lead. It also advertised for a post on the Constitutional Court and posts on the Supreme Court of Appeal.
If Hlophe participated in those interviews, it would create “multiple problems”, said the DA’s Helen Zille. If it was later found that his participation was unlawful, it would mean the JSC’s advice on who to appoint would be unlawful. His participation would also “undermine the integrity of the JSC and the public perception of its ability to perform its constitutional function”, she said.
Zille said the National Assembly’s decision to send Hlophe to the JSC was unlawful because it was based on “a material error of law”. While the constitution requires that three of the assembly’s JSC designees must come from minority parties, this did not mean minority parties get to determine which of their members go to the JSC.
Zille acknowledged that his had always been the practice before. But she said: “The constitution does not state that the National Assembly must designate whichever MPs that political parties designate. It gives the power to designate to the National Assembly as an institution, not to a political party.”
However, the ANC believed it was constrained to support Hlophe because it said there were no rules or laws that prevented Hlophe’s designation. “This was a material error of law,” said Zille. “It was, at the very least, open to the National Assembly not to designate Dr Hlophe and to require MK to identify a different MP.”
She said the DA had no problem with the MK party designating any other of its MPs, but it was not entitled to send Hlophe to the JSC.
The choice of Hlophe was also substantively irrational, she said. The JSC had to determine if candidates were fit and proper to be judges. “How can a person who has demonstrated that he will breach fundamental judicial ethics be trusted to evaluate whether candidates for judicial office have the character required of judges?”
Zille said the constitution required that all organs of state must assist and protect the courts to ensure their independence, impartiality and dignity. The public must believe that judges are trustworthy and honest and that they were selected through a legitimate process.
By designating Hlophe to the JSC, the National Assembly has violated that obligation and is undermining public faith in the judiciary, she said.
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