By Lehlohonolo Lehana.
The Democratic Alliance (DA), Freedom Under Law (FUL) and Corruption Watch are challenging impeached judge John Hlophe’s designation to the Judicial Service Commission (JSC), in the Western Cape High Court.
Hlophe is the first judge to be removed from office by the National Assembly (NA), 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.
In July, Hlophe was nominated by the uMkhonto weSizwe (MK) Party to serve on the JSC, which is responsible for nominating judges for appointment, and for disciplining judges.
DA Federal Council chairperson Helen Zille said the core issue was whether someone with a history of misconduct should be allowed to participate in the selection of judges, a role, she said demanded unimpeachable standards.
“Our challenge is not just a legal battle; it is a stand for the values of our constitutional democracy, ensuring that those who hold power within our judiciary are beyond reproach,” she said.
In part A of the review application, the DA seeks interim relief to prevent Hlophe’s designation to the JSC.
Part B of the application calls for the review and setting aside of the National Assembly’s decision to appoint Hlophe to the JSC.
Gauteng High Court judges Colleen Collis and Selby Baqwa, along with Free State High Court Judge Johannes Daffue, have been appointed to preside over the case.
Freedom Under Law (FUL) says the National Assembly passed the buck when it approved the MK Party nomination of impeached judge Hlophe, to serve as a commissioner on the JSC.
Advocate Wim Trengove said the house should have exercised some discretion in whether the party’s nomination was in the public interest and if Hlophe was the best candidate for the job.
Hlophe is one of ten Members of Parliament (MPs) nominated by parties to represent Parliament on the body that interviews and appoints judges.
Trengove was arguing before a full bench of judges seconded from the Gauteng division that the National Assembly erred when it didn’t consider Hlophe’s suitability.
FUL said designating a disgraced judge to the JSC has been a “deeply irrational” decision by the National Assembly.
Advocate Max du Plessis, who also represents FUL, said by mere virtue of his impeachment as a judge, it’s destroyed Hlophe’s suitability to serve on the JSC.
Du Plessis said the National Assembly oversimplified its role in approving the designation, arguing that the candidate only needs to be an MP, and nominated equitably among parties.
He added that the National Assembly has the duty to act reasonably, and failed to consider its own decision to impeach Hlophe just four months earlier.
He said Hlophe’s impeachment was not only on the basis of gross misconduct but for an egregious offence.
Meanwhile Advocate Dali Mpofu, representing the MK Party, argued that the DA and Corruption Watch’s interdict applications were a waste of the court’s time.
The lawyer also objected to the court hearing FUL’s review application on the same day as the interdict, noting that the organisation was not seeking interim relief.
“These are not the right proceedings for the part B application. I don’t think I have to explain to the court the absurdity of the notion that you have a part B application being heard before part A because part A is pending part B,” he said.
Baqwa reminded Mpofu that all parties involved in the case had the right to present their arguments, as they had been formally admitted to the proceedings.
“The court is alive to the matters that you are raising, therefore, you expanding on them doesn’t help and in fact, it detracts from the proceedings in terms of the time issue, which you are also aware of.
“So, I am saying at this point we dont have to carry on. We have noted your objection, we are aware in what context raising it,” the judge said.
Advocate Ismail Jamie, representing the DA, then intervened, requesting the court to enforce its directive.
“He is now attempting to persist with submissions in support of the objection.
“That is inappropriate, it is contrary to the court’s directions, it is an abuse, with the greatest of respect, of not only the court’s time, but all our time,” Jamie said.
“There is no way I’m not allowed to object. I have never heard of that,” Mpofu responded.
Baqwa reiterated to Mpofu that he had agreed to raise his objection and make submissions on the matter at a later stage.
Hlophe’s lawyer, Advocate Thabani Masuku, also addressed the court in defence of Mpofu.
“It’s a procedural absurdity to have an application for a final order granted in circumstances where the primary litigants of the case, which is the DA and Corruption Watch, brought to this court an interdict against my client.
“Now we have to listen to an argument on part B of the application. Mpofu is correct,” Masuku said.
Speaker of the National Assembly Thoko Didiza told High Court it was not appropriate for her to defend the views of some political parties over others in a dispute over Hlophe’s designation.
Representing the Speaker, advocate Adila Hassim noted it was unprecedented that the House was divided on the matter of designating commissioners to the JSC.
In the past, the decision to designate commissioners had always been reached by consensus.
Hassim said that the Speaker took reasonable steps to address concerns raised by some parties by postponing the matter when it first served before the House in June, to allow for more discussion by party whips.
But the Speaker said that she would not be taking sides and would abide by the decision of the court.
The hearing continues on Friday.
Civil rights organisation AfriForum has also applied to the Constitutional Court asking it to declare Hlophe’s appointment as “irrational, unlawful and in conflict” with the NA’s constitutional duty.