The Judicial Service Commission (JSC) could find itself facing a second challenge to its decision on Judge John Hlophe, this time from Western Cape premier Helen Zille.
Zille said on Friday her office was seeking legal advice on whether she had been ”unconstitutionally excluded” from the JSC committee that met on the Hlophe issue last week.
The JSC said it would not to proceed with a probe into allegations that Hlophe tried to influence Constitutional Court judges in a matter relating to President Jacob Zuma.
Zille’s announcement followed a piece published earlier in the day by constitutional law expert Pierre de Vos, on his blog Constitutionally Speaking.
De Vos asked whether Zille should have been part of the committee when it took the decision.
”A clever and alert reader of this blog thinks so — and I agree,” he said.
”This would mean the JSC was unlawfully constituted when it made its decision and on that ground alone the decision could be set aside by a court,” he said.
He said section 178(k) of the Constitution laid down that when the JSC considered ”matters relating to a specific high court”, the premier of that province or her representative had to form part of the body.
Premiers already formed part of the JSC when it decided on appointments for the high court in their provinces, so the composition of the high court was deemed to be ”a matter relating to a high court”.
”It seems to me that it follows by necessary implication that if the premier is involved in the appointment of any judge, he or she must also be involved in the possible removal of any judge,” De Vos said.
On Thursday a civil rights body, Freedom Under Law, which is headed by former Constitutional Court judge Johann Kriegler, said it intended challenging the JSC decision.
Kriegler said this week proceedings would be launched soon to set aside the decision as ”irrational and unreasonable”.
The challenge by Freedom Under Law has the support of two of its panel members, Desmond Tutu and Mamphela Ramphele.
On Friday the DA and the Congress of the People (Cope) said they welcomed Kriegler’s legal challenge.
”Judge Kriegler’s application for review is an excellent remedy and reproach,” DA justice spokesperson Dene Smuts said.
Cope’s communications chief, Phillip Dexter, said he agreed with Kriegler that the JSC had failed South Africans.
”The JSC has been effectively nobbled, ensuring that it takes political rather than legal decisions,” Dexter said. – Sapa