By Lehlohonolo Lehana.
Civil Rights Group AfriForum has approached the Constitutional Court to prevent John Hlophe, the ousted judge president of the Western Cape, from serving in the country’s watchdog body for judges.
In court papers, Afriforum wants the Constitutional Court to declare that Hlophe’s appointment is irrational, unlawful and in conflict with the National Assembly (NA) constitutional duty.
AfriForum has already served its court documents electronically on the Speaker of Parliament, Hlophe and the MK party. An application requesting, among other things, direct access to the Constitutional Court is expected to be issued in the coming week.
According to Kallie Kriel, CEO of AfriForum, “it is unthinkable that aspiring judges’ ethics, integrity and suitability to serve as a judge should henceforth be assessed by Hlophe as a member of the JSC. This while Hlophe himself was earlier found unfit to serve as a judge by the Judicial Services Commission (JSC) due to his dishonesty and gross misconduct.
“It is essential that AfriForum fights Hlophe’s appointment to the highest court, because his presence in the JSC seriously undermines the credibility and independence of the judiciary, while it also undermines the rule of law,” adds Kriel.
In court documents, it is pointed out that the NA, under Article 165 of the Constitution, has a duty to assist and protect the courts, among other things, to ensure the courts’ independence, impartiality, dignity and effectiveness. “By appointing Hlophe, the NA not only neglected its constitutional duty, but acted directly contrary to the Constitution,” emphasises Kriel.
AfriForum argues that the case can be brought directly before the Constitutional Court because this court has exclusive jurisdiction over the case and because the case is urgent. According to Kriel, the JSC will already conduct interviews with prospective judges in October this year and it would violate the public’s trust in the judiciary if Hlophe were to be part of the interview process.
Hlophe is the first judge to be removed from office after 1994 by the NA. This followed after the JSC found him guilty of dishonesty and gross misconduct. His conviction resulted from his attempts to unlawfully influence two judges of the Constitutional Court, Judges Bess Nkabinde and Chris Jafta, in 2008 to rule in favour of Jacob Zuma in cases before them.
The Hlophe issue was the first proper test of Government of National Unity (GNU) solidarity in the seventh Parliament, with the matter originally withdrawn from the National Assembly order paper a week ago to allow for behind the scenes discussions.
The Democratic Aalliance (DA) had made it clear from the start to the African National Congress (ANC) that it would object to the nomination of Hlophe by MK Party.
Despite the JSC’s damning findings against Hlophe, the issue of his potential membership of the JSC became a firestorm on social media in recent days, with MK and EFF supporters arguing that even to refer to Hlophe as a “disgraced judge” is offensive.
Freedom Under Law, the Ahmed Kathrada Foundation and Judges Matter were among those who argued that “Designating an individual to the JSC who has been found by the very body in question to have committed gross misconduct and has been removed from a position as a judicial officer to play a role in the selection of other judicial officers would be completely inappropriate… it would be irrational and, in our view, susceptible to legal challenge, and it would undermine public confidence in the judicial appointments process, and thereby in the judiciary.”
The JSC is made up of 23 members and is tasked with assessing and recommending potential judge candidates and also with considering complaints against judges.
The ANC has lost one seat on the JSC due to GNU concessions to accommodate smaller parties. It previously held three of the six seats allocated to members of the National Assembly, and is now down to two.
Joining Hlophe as the parliamentary representatives on the JSC will be Molapi Lekganyane and Fasiha Hassan from the ANC, EFF leader Julius Malema, the DA’s Glynnis Breytenbach and Action SA’s Athol Trollip.