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
The Democratic Alliance (DA) has asked the Western Cape high court to overturn the appointment of the division’s former judge president, John Hlophe, to the Judicial Service Commission (JSC) four months after he was impeached.
The DA argued in its founding affidavit that Hlophe’s appointment was not only irrational but based on a material error in law made by the ANC when it reasoned that there were no legal grounds for objecting to it.
The application is two-fold. In part A, the party seeks an urgent interdict barring Hlophe from taking up his seat on the commission. It does so particularly with a view to the JSC’s next round of interviews which is scheduled to take place over five days in October.
The commission will interview candidates for the judge presidency of the Western Cape, four positions in the same division, one on the constitutional court and three at the supreme court of appeal.
It would mean that, were Hlophe to participate, he would help to decide who should fill a position from which he was removed by President Cyril Ramaphosa on 1 March, a week after the National Assembly adopted a motion recommending the step by 305 votes against 27.
In part B, the DA asks the court for an order reviewing and setting aside the decision by the National Assembly two weeks ago to endorse his nomination by the uMkhonto weSizwe (MK) party to serve on the JSC.
Helen Zille, the chairperson of the DA’s federal council, argued in the founding affidavit that if the court were to find that his appointment was indeed unlawful, his participation in the October process would be unlawful by extension.
This, she said, would then render the JSC’s advice to Ramaphosa as to who should fill the vacant positions unlawful. It would also undermine the integrity of the commission and the public’s faith in its ability to fulfil its constitutional mandate.
“The DA therefore seeks an interdict that would prevent Dr Hlophe from serving on the JSC until the final determination of part B.”
It is the first legal review the DA has brought since it entered into a ruling coalition with the ANC and eight other parties last month.
In the National Assembly, the party strenuously objected to Hlophe’s appointment and the founding affidavit confirms that it was at its urging that ANC chief whip Mdumiseni Ntuli initially withdrew the motion for appointing representatives to the JSC for further consultation.
Consultation did happen, but when the motion was back on the table a few days later, Ntuli told the chamber his party’s position was that since there was no impediment in law or in the rules of the legislature against Hlophe’s candidacy, its hands were tied. Other parties in the coalition were divided on the nomination.
Ntuli said the ANC believed that the convention of accepting the nominations put forth by parties, should be respected until such time that the rules or the law may be amended.
“We have agreed that in instances where the rules of parliament or the Constitution has not clearly defined a particular position, we are going to have to live on the basis of the established rules and practices of parliament,” he said.
“We want to suggest that the house should not take a position unless it has clarified its own rules where there is a lacuna or a gap in our rules, as well as the Constitution.”
Zille noted in the affidavit: “The ANC did not say that it was rational or consistent with judicial independence to designate Dr Hlophe; it only said that it did not believe it could deviate from the existing practice without an amendment to the constitution or the NA’s [National Assembly’s] rules.”
Instead, it said the rules and the constitution were silent on the particular scenario Hlophe’s candidacy presented.
“That was a material error of law,” Zille said.
The National Assembly was bound by the prescripts of the constitution when it designates representatives to the commission. It was enjoined to act rationally and in line with section 165(4) of the constitution.
And it was not bound to accept parties’ nominations.
Zille said section 178(1)h) of the Constitution says the JSC must include six members of the National Assembly, at least half of whom must be drawn from the ranks of the political opposition.
It ascribes to the National Assembly the power to designate those members and does not constrain it beyond specifying that a minimum of three must be opposition MPs.
“The Constitution does not state that the National Assembly must designate whichever MPs political parties designate,” she stressed.
“It gives the power to designate to the National Assembly as an institution, not to political parties.”
Therefore it was open to the National Assembly not to designate Hlophe and “to require the MK [party] to identify a different MP”.
Zille said she could not venture to say what the ANC, which holds 159 seats in the assembly, would have done had it understood that its stance was flawed in law.
“I do not know how the ANC would have voted if it had correctly appreciated that the law, at the very least, did not oblige it to accept Dr Hlophe’s nomination and therefore permitted it to reject the nomination.
“But the decision was taken on a misapprehension of the law.”
The ANC’s alleged mistake is one of the DA’s three grounds for review, the other two being that the decision was irrational and flouted section 165(4), “assist and protect the courts to assure the independence, impartiality, dignity, accessibility and effectiveness of the courts”.
The decision was irrational, Zille argued, because the task of MPs who serve on the JSC is to assist with the appointment of judges, which entails weighing whether they are fit and proper.
Hence a person designated to serve on the JSC must be capable of judging whether another person has the appropriate character to serve on the bench.
“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?” she asked.
This meant there was no rational connection between the assembly’s decision to send him to the JSC and the purpose for which the Constitution gives the assembly the power to designate commissioners.
It also undermined public trust in the judiciary, because citizens must be able to trust that judges are appointed through a legitimate process and that those who do not display the requisite integrity will be removed from the bench.
Hlophe was found guilty of gross misconduct by the Judicial Conduct Tribunal for raising pending rulings relating to former president and now MK party leader Jacob Zuma’s arms deal corruption case with two constitutional court justices.
The tribunal said he 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.
The JSC endorsed that finding in 2021.
Hlophe maintains that he did nothing wrong. He repeatedly delayed the misconduct inquiry by way of legal challenges, and unsuccessfully took the findings on legal review.
He was not on the MK party’s list of candidates for the National Assembly, but was named as its parliamentary leader last month after the party made numerous substitutions.
Zille said the DA believed that the manner in which Hlophe was made an MP was inconsistent with the spirit of the Electoral Act “even if it complied with its letter” and may yet challenge it in a separate court application.
AfriForum is also challenging Hlophe’s appointment but has directly approached the constitutional court.