Can an acting Constitutional Court judge who owes his or her once-off appointment to the president make an independent decision?
This was one of the issues facing Constitutional Court judges this week as they considered an appeal by Western Cape Judge President John Hlophe on Tuesday.
Hlophe is alleged to have approached members of the Constitutional Court in an attempt to influence their judgments in corruption cases involving President Jacob Zuma in 2008. The justices approached the Judicial Service Commission (JSC), which cleared Hlophe, but this decision was challenged by the not-for-profit organisation Freedom Under Law and Western Cape Premier Helen Zille.
Freedom Under Law contended that the JSC had not fulfilled its constitutional duty to hold a formal inquiry following the Constitutional Court judges lodging a complaint of gross misconduct against Hlophe in 2008. The Supreme Court of Appeal found in favour of the organisation and Zille and also found that the JSC was not properly constituted when that decision was made because Zille, as a member, had not been present. The finding led to Hlophe applying to the Constitutional Court for leave to appeal the judgment.
With seven of the justices directly involved in the JSC complaint and Chief Justice Mogoeng Mogoeng having apparently attempted to mediate between the justices and Hlophe, eight members of the court’s Bench are affected parties and would have to recuse themselves, leaving only three able to hear the matter. The court requires a quorum of eight judges.
Advocate Thabani Masuku, acting for Hlophe, contended that section 175 (1) of the Constitution, which states that “[t]he president may appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent”, allowed Zuma to make an appointment in these cases. Doing so would not deny Hlophe his constitutional right to access to justice.
Justice Johann van der Westhuizen noted that judges were appointed “for a term, two terms et cetera and not to a single case” and questioned whether such an action would not lead to allegations of executive interference in the matters.
Advocate Azhar Bham SC, representing the Centre for Applied Legal Studies, which appeared as amicus curiae for Freedom Under Law and Zille, contested the interpretation of the words “vacancy” and “absent”, arguing that by recusing themselves the justices would be fulfilling a judicial function and would be, in essence, present. The president was therefore not empowered to appoint acting judges.
This was countered by Ravi Padayachee SC, acting for the Black Lawyers’ Association, which appeared as amicus curiae for Hlophe, who argued that the Constitution required an “elastic” interpretation of “vacancy” and “absent” “so that justice can be served”.
Another question with which the justices grappled was whether a reconstituted Constitutional Court would, in fact, still be the Constitutional Court. Van der Westhuizen also asked Hlophe’s other legal representative, advocate Kgomosoane Mathipa, whether the president could appoint acting judges to the Constitutional Court if judges recused themselves but the court was still able to form a quorum.
“The president could, but that is our interpretation,” Mathipa said.
If there is a finding in Hlophe’s favour, the judgment, which was reserved, would set a precedent, allowing the presidency to intervene in similar situations in the future.
It is a case that will test the separation of powers at a time when the government intends a review of the judiciary — including Constitutional Court rulings — and criticisms of the court’s penchant to “co-govern” are being voiced, with increasing volume, by both the ANC and the presidency.