The JSC in 2021 affirmed a finding by the Judicial Conduct Tribunal that Hlophe had committed gross misconduct by raising a pending ruling relating to former president and now MK party leader Jacob Zuma’s arms deal corruption case with two constitutional court justices. File photo
Parliament on Tuesday postponed the election of representatives to the Judicial Services Commission (JSC) after the uMkhonto weSizwe (MK) party nominated former judge John Hlophe to serve on the body that found him guilty of gross misconduct.
ANC chief whip Mdumiseni Ntuli withdrew the draft resolutions for the election of the house chairperson as well as the representatives to the commission and the Southern African Development Community Parliamentary Forum “for further consultation”.
The MK party protested that this was being done without an explanation, but the speaker, Thoko Didiza, said Ntuli had stated that the reason was to allow further consultation. Members of other political parties confirmed to the Mail & Guardian that they were in the know.
Hlophe was impeached by the National Assembly in February but was sworn in as an MK party MP last month and appointed its parliamentary leader.
The former judge president of the Western Cape told the media last week that he believed he could make a contribution to the commission, given his experience as a senior judge. He added that the same went for serving on the portfolio committee on justice.
Although it would be unprecedented, there is no legal impediment to an impeached judge serving on the JSC. If Hlophe were to become a member, it would see the body tasked with appointing judges accommodate one who discredited the bench and scathingly dismissed its finding that he flouted the ethical code of the profession as unfounded in law.
The prospect caused severe disquiet in the legal fraternity.
Judges Matter on Tuesday called on MPs to reflect carefully when designating six members of the National Assembly to represent the chamber at the JSC.
At least half of these political representatives must come from the opposition benches.
“Considering the important constitutional and legal functions both commissions play in our judiciary, Judges Matter calls for proper reflection and serious consideration on the merits of each delegate,” the watchdog NGO said.
It said it was specifically asking MPs to “select those members who will strengthen and protect the judiciary, to ensure an independent judiciary that upholds the rule of law and delivers justice for all South Africans”.
Judges Matter research officer Mbekezeli Benjamin noted that there have been calls for a code of conduct to be developed for both the JSC and the Magistrate’s Commission.
The aim would be to hold commissioners to the highest ethical standards. But in the absence of such a code, he said, it fell to parliament to select only members who could meet those standards.
“An obvious disqualifier is anyone who has been implicated in serious ethical breaches, state capture and/or misconduct,” Benjamin said.
In a letter to Didiza on Tuesday, Judges Matter, Freedom Under Law, the Council for the Advancement of the South African Constitution, the Helen Suzman Foundation and the Ahmed Kathrada Foundation urged that the legislature not elect Hlophe to serve on the JSC, adding that such a move may well be open to legal challenge.
“Designating an individual to the JSC who has been found by the very body in question to have committed gross misconduct and has been removed from a position as a judicial officer to play a role in the selection of other judicial officers would be completely inappropriate,” the group wrote.
“It would be irrational and, in our view, susceptible to legal challenge, and it would undermine public confidence in the judicial appointments process, and thereby in the judiciary.”
The JSC in 2021 affirmed a finding by the Judicial Conduct Tribunal that Hlophe had committed gross misconduct by raising a pending ruling relating to former president and MK party leader Jacob Zuma’s arms deal corruption case with two constitutional court justices.
The tribunal found that Hlophe seemed to have been on a politically motivated “mission” to sway justices Chris Jafta and Bess Nkabinde when he tried to raise the matter with them in separate meetings in the spring of 2008, a year before Zuma became president.
Hlophe maintained that he had done nothing wrong, and repeatedly delayed the misconduct inquiry by way of legal challenges, and unsuccessfully took the findings on legal review.
The saga spanned 14 years, and exposed the institutional weaknesses of structures meant to handle misconduct complaints against members of the judiciary. Hlophe and Nkola Motata were the first judges to be removed from the bench for misconduct in post-apartheid South Africa.
The other nominees for the JSC were Glynnis Breytenbach from the Democratic Alliance (DA), Fatima Hassan and Molepi Lekganyane from the ANC, Athol Trollip from ActionSA and Julius Malema from the Economic Freedom Fighters (EFF).
Malema has a history of using interviews for judicial appointments for political grandstanding and gate-keeping. He claims credit for denying David Unterhalter, now a judge of the supreme court of appeal, appointment to the apex court.
The six NGOs who wrote to the speaker recalled that the commission has been taken to court in recent years after interviews for vacancies at the constitutional court were abused for political aims, resulting in a rerun of the process. Freedom Under Law recently filed suit after the JSC failed to fill vacancies at the supreme court of appeal.
“It is in the context of the importance of the work of the JSC, and well-documented failures in how it has performed its role, that we raise concern about the prospective designation of Dr Hlophe,” they said.
Tuesday’s plenary sitting proceeded to elect four representatives to the Pan African Parliament, including MK party MP Duduzile Zuma-Sambudla, Zuma’s daughter.
The others are Ntuli for the ANC, Mergan Chetty from the DA and Vuyani Pambo from the EFF.