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
AfriForum has filed papers to the constitutional court to have John Hlophe’s appointment to the Judicial Service Commission (JSC), which occurred four months after he was impeached, set aside as unconstitutional and unlawful.
The civil rights group argued that the appointment of the new parliamentary leader of Jacob Zuma’s uMkhonto weSizwe (MK) party betrayed the spirit of the Constitution by violating the duty it places, in section 165, on the legislature not to interfere with the functioning of the courts but to protect their independence, dignity and impartiality.
“The quintessence of the irrationality is that parliament — despite the constitutional duty it has to protect and assist the courts — designated Hlophe to be a member of the JSC and take charge of choosing judges when he was found guilty of defying and attacking the very duty not to interfere with the functioning of the courts and to assist and protect them,”
AfriForum chief executive Kallie Kriel said in the organisation’s founding affidavit.
“It would, among other problems, be inappropriate that aspirant judges be assessed on their ethics, integrity and fitness for office by Hlophe when he was found — by the very body he will now join, and as confirmed by the courts — guilty of gross misconduct and unfit to hold judicial office.”
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.
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.
Fourteen years later, the National Assembly approved a resolution that President Cyril Ramaphosa remove him from the bench. 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 ANC did not oppose his nomination when appointing the parliament’s new representatives to the commission a fortnight ago, on the basis that nothing in law or in the rules of parliament prohibited the appointment of an impeached judge.
But Kriel submitted that parliament was in breach of its constitutional obligations for failing to make rules, in terms of section 55 of the Constitution, which speaks to its oversight obligations, for maintaining oversight of the JSC.
He said this placed the court within the exclusive jurisdiction of the apex court because no other court had the authority to determine whether the legislature had failed to live up to its constitutional obligations.
In asking for direct access to the constitutional court, Kriel said it was settled in case law that matters that involved the sensitive points of the doctrine of separation of powers must be heard by the apex court.
“And where a dispute will require a court to decide a crucial political question and thus intrude into the domain of parliament, the dispute will more likely be one for the exclusive jurisdiction of this court.”
He said former chief justice Sandile Ngcobo explained in Doctors for Life International v Speaker of the National Assembly and Others in 2006 that where a primary obligation rests on parliament, but it is not told how to discharge that duty, the intrusion by a review court is reserved for the apex court.
“It is submitted that this is just such a case: the very reason parliament presented in favour of designating Hlophe was that until it had made rules to prevent a member impeached by parliament from serving on the JSC it could not prevent Hlophe from doing so; and by necessary extension, until then it must (as it did) vote for him.”
AfriForum said this stance did not only ignore the duty parliament carries but made it a matter for the court to define those duties and indicate how MPs should acquit themselves.
Kriel cited case law, some of it arising from litigation around Hlophe’s disciplinary process, confirming that the composition and conduct of the JSC was a matter of constitutional importance.
“I submit that the issue here is unparalleled,” he said.
“It is so fundamental to South Africa’s constitutional democracy, and the effect on it of the designation of a person already impeached and found unfit for judicial office to the JSC which he will now join, so dire that it is in the public interest for this court to grant access, assume exclusive jurisdiction and dispose of this matter as expeditiously as possible.”
As legal observers have done, AfriForum too raised the prospect of aspirant judges or judges seeking promotion to higher courts calling for Hlophe’s recusal from their interviews with the commission.
This would delay appointments, or lead to legal challenge of the legality of the commission’s proceedings.
“It is not in the public interest that judicial vacancies in critical positions remain any longer than they should.”
While many in the legal fraternity regard the matter as ripe for legal review, they also note the courts are rightly loath to wade into the realm of the legislature.
Kriel argued that the separation of powers is not undermined by a rationality inquiry because such a test by its nature involved the minimum “or lowest possible threshold for the validity of executive decisions”.
Freedom Under Law has indicated that it will also challenge the appointment.