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
Senior advocate Geoff Budlender has argued that impeached former Western Cape judge president John Hlophe’s conduct renders him unsuitable to serve on the Judicial Service Commission (JSC), warning that his return would undermine the integrity of the body.
Budlender, acting for Corruption Watch, told a full bench of the Western Cape high court on Tuesday that the National Assembly’s designation of Hlophe to the JSC was flawed and legally irrational.
He criticised the argument advanced by Hlophe and his legal team that parliamentary membership and opposition party affiliation were the only qualifications for appointment to the commission.
“If that were the case, members of the National Assembly could simply throw darts at a dart board when choosing JSC members, because merit, qualifications and suitability would not be considered,” Budlender said.
The court was hearing a challenge by the Democratic Alliance (DA), Freedom Under Law and Corruption Watch, which contend that the National Assembly acted unlawfully and unconstitutionally when it designated Hlophe to the JSC.
In September last year, the same court granted an interim interdict barring Hlophe from participating in the October 2024 judicial appointment interviews.
The interdict stands until a final ruling is made on whether he was properly chosen to represent the National Assembly on the commission, a body that appoints and disciplines judges.
Hlophe was found guilty of gross misconduct by the Judicial Conduct Tribunal in April 2021, which was confirmed by the JSC. Parliament voted to impeach him in February last year.
Since then, Hlophe has become a member of parliament for the MK party.
He resigned as JSC commissioner as the commission was conducting the interviews of 51 candidates to fill vacancies at various courts — including four positions for new judges and the judge president position in the Western Cape.
The MK party said at the time that Hlophe had resigned because he did not want to “legitimise an illegitimate process”.
But as senior advocate Ismail Jamie told the bench on Tuesday, Hlophe has vowed to return to the JSC once he is cleared of his legal issues.
Jamie, acting for the DA, said that Hlophe remained “unrepentant” about his conduct and continued to “attack and malign” the process that led to his removal and the court judgment in his interdict proceedings.
The message that had been sent out was “very clear”, said Jamie, and that message was that “we as parliament, as the National Assembly, say it’s okay to put into this position someone who has recently been removed and continues to attack the probity and honesty of the motives of those who removed him, and those who seek to restrain him”.
Under those circumstances, it was clearly irrational and inappropriate to appoint him, said Jamie.
Judge Annali Basson asked if the matter, in its entirety, should not be referred back to the National Assembly, “Or is there an issue with asserting the powers of the National Assembly in disqualifying Dr Hlophe from future appointments?”
It was the DA’s assertion that this was not an issue of separation of powers, as Hlophe has argued, Jamie responded.
“The constitutional court and other courts have said repeatedly that when this court upholds the Constitution against a variety of organs of state in constitutional litigation, it is not entrenching on the separation of powers, it is upholding the Constitution, which is the central function of the courts,” he said.
Organs of state that find themselves “on the sharp end of a legal challenge shout separation of powers”, he said. “We submit that properly construed, on the ordinary approach to asserting constitutional rights, no.”
Budlender said that choosing members to sit on the JSC was an exercise in public power that had to be done rationally and with some element of legality.
“You can’t throw darts at a dart board, and similarly, you can’t ignore the suitability of the candidates — that would be equally arbitrary and irrational.”
One of the foundations of Hlophe’s case, said Budlender, was that if an opposition party nominates a person, the National Assembly is obliged to designate that person. According to Hlophe’s heads of argument, this is part of the prerogative of the National Assembly.
“That proposition is simply wrong,” said Budlender, and was incompatible with the Constitution.
Hlophe’s legal team has maintained that the separation of powers doctrine prevents courts from ruling on the lawfulness of the National Assembly’s decision to designate members of the JSC. According to their argument, the courts have no jurisdiction to interfere in the parliamentary decision-making process.
Budlender dismissed this argument as legally indefensible.
“That is an astonishing proposition,” he said. “In our constitutional democracy, the law governs all of the acts of organs of state. If an organ of state does not act lawfully, the court must intervene. There are no ‘no-go’ areas in our public law.”
Budlender said it was Corruption Watch’s position that Hlophe’s conduct — not that he was impeached — made him unsuitable for designation to the JSC.
Hlophe returning to the JSC would demean and undermine it, he said.
“It’s not a matter of trying to add an extra consequence to his impeachment, it is simply that no one who did what Dr Hlophe did could be considered suitable for appointment.”
Advocate Wim Trengove, SC, representing Freedom Under Law, told the court that the National Assembly had treated the designation of Hlophe as a rubber-stamping exercise, with most members unaware they had the discretion to reject his nomination.
“The National Assembly failed to exercise the discretion invested in them because they didn’t realise they had that discretion,” Trengove said.
“They committed a mistake of law by not realising they could exercise it at all.”
He said that the issue was not whether the discretion was exercised correctly but rather that it was not exercised at all, making the entire process “fundamentally flawed”.
The matter continues.