The MK Party’s leader in parliament, John Hlophe, has turned to the Constitutional Court over an interim interdict preventing him from participating in upcoming Judicial Service Commission (JSC) interviews.
His resort to the highest court comes despite the fact that a hearing in the main case, to determine whether he should be permanently barred from the JSC, will be heard by the Western Cape High Court next week. However, given the history of this dispute, it is likely that whatever the outcome, it may be appealed and remain tied up in litigation for some time.
When the National Assembly (NA) designated Hlophe to the JSC in July last year, several litigants, including the DA, rushed to court to challenge the decision. They said Hlophe, who was impeached as a judge last year, should not be part of the body that interviews and recommends candidates for judicial appointment. With JSC interviews imminent, they urgently sought an interim interdict preventing Hlophe from participating, pending full argument on the complex and novel constitutional questions thrown up by his designation.
The interim interdict was granted by the Western Cape High Court in September. Following the judgment, Hlophe resigned from the JSC.
When Hlophe and the MK Party applied for leave to appeal against the interim interdict in the high court, the court sent them packing and slapped them with a punitive costs order. Among other reasons, it said the order they sought “will have no practical effect”.
The court said: “Having resigned from the JSC ... Dr Hlophe will not serve on the JSC pending finalisation of the part B relief. The interim relief becomes moot and there is no basis for granting leave to appeal.”
In Hlophe’s latest application for leave to appeal to the ConCourt, his attorney Barnabas Xulu did not address Hlophe’s resignation or whether an appeal would be moot. However, it was argued during the high court proceedings that an appeal would not be moot because the MK Party had no intention of nominating any other person for designation to the JSC.
In the ConCourt application, Xulu said the only requirement to be designated as an MP member of the JSC was that the designees were members of the National Assembly and that three of them were from opposition parties. Yet the court’s order barred Hlophe, “without impugning the constitutionality of his membership of the NA”.
While the DA had argued its case was about the lawfulness of a decision to designate an impeached judge to the JSC, Xulu said the DA’s case was a 'political gimmick that advances the insatiable hatred that the party has of Dr Hlophe as a person. The target is a person, and not a good-faith attempt to advance a constitutional argument'.
The order also only applied to Hlophe. The high court had unfairly discriminated against Hlophe by interdicting him and not the other five MPs that had been designated by the National Assembly. This was unfair discrimination and a “constitutional absurdity”, said Xulu.
Other MPs could have been former apartheid politicians, he said. Yet they would be able to serve on the JSC and only former judges that were removed from office were excluded.
Excluding a single member of the JSC “for conduct that is unrelated to the true work of the JSC is unconstitutional in that it undermines the constitutional mission of the JSC”, said Xulu.
The high court’s judgment said the work of the JSC would not be severely impacted: Hlophe “may miss one, or perhaps two, sittings of the JSC”, said the court.
The JSC “will function in [Hlophe’s] absence, but if required, the National Assembly may always designate another MP, nominated by the opposition parties, to take his place”, the judgment said.
While the DA had argued its case was about the lawfulness of a decision to designate an impeached judge to the JSC, Xulu said the DA’s case was a “political gimmick that advances the insatiable hatred that the party has of Dr Hlophe as a person. The target is a person, and not a good-faith attempt to advance a constitutional argument.”
Hlophe also took issue with the punitive costs orders that the high court gave — both in its original judgment, which he said it did without justification, and in its leave to appeal judgment.
When the court rejected the application for leave to appeal, it had harsh words to say about what Hlophe and the MK Party said about its earlier judgment. Hlophe had said the judgment was unsurprising because “we know the judiciary is captured. It’s as simple as that.” The court said his statement was “contemptuous and unsubstantiated” and was made “without an iota of evidence ... denigrating this court and the judiciary at large”.
In the ConCourt application, Xulu said this was a “very unfair approach to determining cost orders. No litigant should be saddled with a punitive cost order for expressing a view about a judgment — even where that view is wrong and critical. There is no judicial immunity from political commentary and free speech.”
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