John Hlophe was impeached for trying to sway two apex court justices to decide applications linked to the arms deal in Jacob Zuma’s favour. Picture: Werner Beukes/SAPA
Former Western Cape judge president John Hlophe has argued in court papers that three applications to have his appointment to the Judicial Service Commission (JSC) declared unlawful was a racist vendetta.
“I am the only judge who openly opposed racially offensive tendencies that bedevilled the Western Cape high court,” Hlophe, now the parliamentary leader of uMkhonto weSizwe (MK) party, said in an answering affidavit filed to the same court.
“That is what earned me the attention of these organisations [Freedom Under Law and Corruption Watch], who today pursued me with unflinching hatred.”
Freedom Under Law, Corruption Watch and the Democratic Alliance (DA) argue that the decision by the National Assembly to endorse the MK’s party’s nomination of Hlophe to the JSC was irrational and unconstitutional.
Hlophe’s appointment created the unprecedented situation of a judge who was found guilty of gross misconduct being designated by the chamber that removed him from the bench to serve on the same commission that recommended his impeachment.
All three applicants strenuously made the point that this history rendered him unsuitable to help the JSC make judicial appointments.
Hlophe countered that he intended using his seat at the commission to continue to promote transformation of the judiciary.
“That is what qualified me to be a member of the JSC — my extensive experience and contribution to the transformation of the judiciary.”
He added: “That is what makes these vindictive applicants vengeful — the reality that I will continue to assist on the transformation of the judiciary — because that prospect drives fear that those they revere — who they wish to see as judges but are not fit for our constitutional purpose of transformation will be asked to justify why they should be accorded the honour of being judges of our constitutional democracy.
“They wish to protect their candidates from the scrutiny that they know I will bring in the JSC.”
He said he maintained that his removal from office in February with the loss of financial benefits was unlawful, as he argues in an application still before the high court.
As a member of the JSC he would therefore work to spare other judges the same indignity.
“I intend to ensure that no other judge is subjected to these unconstitutional acts of vindictive political tyranny.”
The DA has asked the high court for an urgent interdict to bar Hlophe from participating in the October round of JSC interviews where the commission will vet candidates for the appellate court and the Western Cape high court, including the position of judge president of the division.
But Hlophe said there was no basis in law for an interdict because the DA cannot assert any prima facie right in law it is seeking to vindicate, nor show that it will suffer irreparable harm if it does not succeed.
“The DA has not identified any right in regard to the relief it seeks. It seeks to have the court ignore the explicit terms of the Constitution and produce an outcome favourable to it without any lawful basis. It seeks to win a debate it lost in the NA [National Assembly] by abusing the courts.”
He argued that section 57 of the Constitution gave the National Assembly the right to determine its own processes, and to make its own appointments.
“Neither the DA nor any citizen has a right to dictate to the NA which members of the NA must be deployed and to what committees and why.”
Therefore, he added, the DA’a application was an unconstitutional attempt to allow the courts to prescribe to the legislature.
“The DA perversely seeks to undermine the very representative democracy by claiming that this court has residual powers to micromanage parliament’s appointment of MPs to committees and service on commissions established by the Constitution.”
It was also an attempt to prevent him from carrying out the constitutional duty assigned to him by parliament, he said.
It is a custom of the National Assembly to accept opposition parties’ nomination of candidates to serve on the commission.
Although the MK’s party nomination of Hlophe created evident discomfort for the ANC, the party chief whip, Mdumiseni Ntuli, and the speaker of the National Assembly, Thoko Didiza, both expressed the view that nothing in law and the rules of parliament precluded an impeached judge from sitting on the JSC.
Freedom Under Law argued that this thinking was rooted in a material error in law, which alone was sufficient cause to set aside the decision.
Section 178(1)(h) confers on the National Assembly, as a collective, a clear discretion in this regard.
“The National Assembly’s power to ‘designate’ does not mean that any six members of parliament nominated by political parties would suffice, and that the National Assembly is blindly bound to accept any candidate which is put forward,” she said.
By following the ANC’s contrary interpretation of the clause, and believing its hands were tied in opposing Hlophe’s nomination, the abdicated that power to a minority party and failed in legal obligation to exercise it rationally.
“In fact, it appeared not to have realised that it had a discretion at all.”
The speaker signalled that her office will not oppose the applications but abide by the court’s decision.
“I have been advised that the appropriate position to adopt in these circumstances is a neutral one,” Didiza said in an explanatory affidavit, in which she stressed the singularity of the situation Hlophe’s nomination posed.
She added that she wanted to clarify her position, as set out in a letter to Freedom Under Law before Hlophe’s appointment, on the lacuna in law on the nomination of an impeached judge.
Noting that Freedom Under Law criticised her stance in its papers, Didiza said she did not mean to convey a view that “it automatically follows that because there are no express disqualifications, that there is an automatic qualification of the nominee”.
The MK party filed a composite answering affidavit, opposing all three applications as a racist onslaught on the powers of the legislature and the will of the electorate.
It was signed by party leader Jacob Zuma, in whose favour the JSC found Hlophe had in 2008 tried to sway two justices of the constitutional court in matters pending before them relating to his arms deal corruption charges.
Zuma argued that the high court could not override the decision of the National Assembly and that the applicants were seeking to abuse the legal process for their political ends.
He described the DA as the political mouthpiece of Freedom Under Law and Corruption Watch, and said he had a personal history of being persecuted by NGOs such as when the Helen Suzman Foundation challenged, successfully, his release from prison on medical parole.
“It is the clear intention of these bodies to create a parallel state and/or a so-called juristocracy where the courts are abused to second-guess and reverse the legitimate decisions of the majority of black people whenever they are elected and/or empowered by the public to make decisions and when those decisions offend against the racist agendas of these organisations or their funders.”
The high court has set down the three applications for hearing by a full bench from 3 to 6 September.
Freedom Under Law did not seek an urgent interdict but asked that the court hear the matter on an expedited basis to provide clarity on the composition of the JSC before it starts conducting interviews on 7 October.
AfriForum is also challenging Hlophe’s appointment but has approached the constitutional court directly.
This story has been updated with comments from Speaker of the National Assembly Thoko Didiza.