The DA has asked the three judges hearing its application for an interdict to stop impeached judge John Hlophe from taking up a seat on the Judicial Service Commission (JSC), to punish his MK Party through a punitive costs order for “vile references” it made in its legal submissions.
Advocate Ismail Jamie, in his final remarks to judges Selby Baqwa, Johannes Daffue and Colleen Collis, sitting in the Western Cape High Court, described the remarks — contained in the party’s heads of argument which were compiled by advocate Dali Mpofu — as “scurrilous” and “entirely unacceptable”.
Paragraph five of the document accuses the applicants of being “busybodies” who claim to be enforcers of the rule of law but “were silent when black women were murdered in cold blood and fed to pigs”.
“This is an entirely vile reference to the abominable murders which occurred on a farm in Limpopo,” Jamie said.
“This is an abuse. And we think the court should signify its displeasure by granting a punitive costs order.”
The DA and Corruption Watch are seeking interdicts preventing Hlophe from taking up his seat on the JSC pending a review of the decision by the National Assembly (NA) to designate him to the position.
While largely relying on similar arguments, Freedom Under Law (FUL) is seeking a final order, setting aside the decision and referring it back to the NA for reconsideration.
Ultimately, the case will most likely end up in the Constitutional Court where AfriForum already has a pending case which the DA, Corruption Watch and FUL have made applications to join.
But the parties want a ruling, either interim or final, from the Western Cape High Court ahead of the JSC’s October meetings, when it is scheduled to hold interviews for new judges.
Jamie, in his submissions on Thursday, said should an interdict be granted, the only harm to Hlophe was he could miss out on the October hearings and possibly one early next year.
“That pales into insignificance if his participation fundamentally taints those proceedings,” he said.
In essence, the DA argues a former judge, removed from office for gross misconduct — for attempting to influence other judges to violate their oaths of office — should not sit on the constitutional body which appoints judges.
There is no question that this is an issue the assembly had not had to deal with before.
— Advocate Adila Hassim, for speaker Thoko Didiza
This, the party said, would diminish the public’s confidence in the judiciary and the decision by the NA to “rubber stamp” the nomination by the MKP of Hlophe was irrational.
Earlier in the argument, advocate Wim Trengove, for FUL, said it was clear from the affidavit by the speaker the NA had believed it had no discretion when designating members to the JSC.
It was “custom” that political parties would nominate candidates — as they did for positions on parliamentary committees — and that these would be accepted with demur.
Trengove said, however, while it might be perfectly legitimate for the purpose it was created — for parliamentary committees — it was inappropriate for designation to the JSC.
And it meant the NA, in its exercise of public power, had not exercised any discretion “which is classic unlawful decision making”.
He said there had been no thought given to the public interests, the constitution and the protection of courts to ensure their independence, impartiality and dignity.
Advocate Max du Plessis, also for FUL, said the overarching purpose of the JSC was to safeguard judicial independence and ensure public confidence in the appointment of judges — “to ensure the legitimacy of the judiciary”.
Hlophe, he said, could not contribute to any of these principles because he had been found to be “grossly unsuitable” for judicial office.
The decision by the NA was not just irrational, “it was deeply so”.
Advocate Pranisha Maharaj-Pillay, for Corruption Watch, said Hlophe remained defiant and unrepentant, as evidenced by his affidavit in the matter in which he says his removal (as a judge) was unconstitutional and characterised by incompetence and deliberate political interference.
“He persists in criticising the JSC and its processes,” she said, noting he had now joined former president Jacob Zuma’s MKP when he had been found guilty, by the JSC, of attempting to influence the two Constitutional Court judges in a matter relating to Zuma’s arms deal-related trial.
Advocate Adila Hassim, for speaker Thoko Didiza, said her client had opted to abide by the decision of the court because there was no direct challenge to her conduct.
However, the NA had been dealing with unprecedented issues starting with the impeachment of Hlophe, the first ever in South Africa, then his nomination to the JSC which resulted in further “unprecedented” objections from some political parties, in a process which was usually done through consensus.
“There is no question that this is an issue the assembly had not had to deal with before. She welcomes guidance on this and awaits the outcome of a decision on this matter.”
Advocate Thabani Masuku, for Hlophe, began his argument late on Thursday and is expected to continue on Friday morning, followed by advocate Dali Mpofu, for MKP.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.