When parliament selects a new member for the Judicial Service Commission (JSC), the MK Party will again nominate John Hlophe for the position — despite his resignation from that body, the party said in court on Friday.
The party was countering an argument that its application to appeal against an interim interdict, which temporarily prevented Hlophe from participating in JSC proceedings, was “utterly pointless” because of, among other reasons, Hlophe’s resignation from the JSC last month.
The party’s position in its legal argument contradicts what Hlophe has publicly said previously: that the party would field a new candidate to sit on the JSC while litigation was ongoing.
Friday’s hearing in the Western Cape High Court was the latest development in a flurry of litigation that followed the National Assembly’s designation of Hlophe as one of its six members to sit on the JSC — the body that interviews and recommends candidates for appointment as judges.
Hlophe, now an MP (and leader in parliament) for the official opposition MK Party, was the first judge ever to be impeached in post-apartheid South Africa. He was removed for gross misconduct after being found guilty by the JSC of attempting to influence two justices of the Constitutional Court to find in favour of Jacob Zuma — then president of the ANC, now president of the MK Party — in a case connected with corruption charges, for which Zuma remains on trial.
After he was nominated for the JSC by the MK Party, the National Assembly voted in favour of his designation — a decision that was urgently challenged by the DA and legal NGOs Freedom Under Law (FUL) and Corruption Watch. An interim interdict was granted in September and a last-ditch attempt by Hlophe and the MK Party to prevent the JSC’s October interviews failed. The interviews went ahead and, on their first day, the MK Party informed parliament of Hlophe’s resignation.
Still, Hlophe and the MK Party pursued an application to appeal against the interim interdict, only to be met with arguments from the DA, Corruption Watch and FUL that the application was pointless and “dead on arrival” — or, in legal language, “moot”.
Counsel for Corruption Watch Geoff Budlender SC said the fact remained that the court order sought to be appealed related to Hlophe’s participation as a member of the JSC. Through his resignation, he was no longer a member of the JSC. The dispute was therefore entirely academic.
But the MK Party's counsel Dali Mpofu SC argued it was not moot because the MK Party “firmly holds the view that it will not replace or substitute Dr Hlophe with another member”, he said in written legal argument to court.
If the interdict remained in place, it would continue to prevent him from participating in the JSC until the litigation by the DA, FUL and Corruption Watch had been finally decided by the courts. With the all-too-likely appeals factored in, this could take years, Mpofu said. There was “no way” the appeal was moot, he argued.
Budlender said Hlophe could not simply withdraw his resignation from the JSC. And while he could be nominated by the MK Party it was “speculative” to suggest the National Assembly would, when it decides afresh whether to send him to the JSC, take the same decision.
Mpofu and counsel for Hlophe Menzi Simelane also argued that, even if the court were to find the application was moot, it could still grant leave to appeal “in the interests of justice”.
They said the court, in granting its interim interdict had made several mistakes — “glaring misdirections”, said Mpofu. Simelane said these errors had wider implications on the “integrity of the constitution and constitutional processes” and that a court on appeal may find differently.
But Budlender and counsel for the DA, Ismail Jamie SC, said it would not be in the interests of justice to allow an appeal. The interim interdict was to remain in place pending “part B” of the case, which will decide whether the National Assembly acted lawfully when it designated Hlophe. The litigants had asked the court to speed up the date for part B and were hoping it would be heard early next year, said Jamie.
If the Supreme Court of Appeal were to decide an appeal on the interim interdict, it would likely hear it only after part B was heard by the high court, said Budlender. What would then likely happen was that the SCA would strike the appeal off the roll for being “hopelessly moot,” he said.
Parallel processes, the duplication of judicial efforts and the possibility of two different courts deciding the same case differently were in the interests of justice, agreed Max du Plessis SC for FUL.
Jamie, Budlender and Du Plessis all asked the court to reprimand Hlophe and the MK Party for statements that they had made after the interdict judgment, including Hlophe saying he was not surprised by it because the courts were “captured”. The MK Party’s statement called the judgment “incompetent, irrational, absurd and blatantly political”.
Invited to distance themselves or retract the comments, they had not done so, they said. “The ineluctable and regrettable truth is that the MK Party stands by those statements,” said Du Plessis.
They asked for a punitive costs order against Hlophe and the MK Party. Budlender said this “disgraceful” conduct was, on its own, a sufficient basis to dismiss the application. The time had come for the courts to make it clear that this kind of conduct “will not be tolerated and will have consequences”.
The judgment was reserved.
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