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.
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.
During the proceedings, Hlophes legal representative, Advocate Thabani Masuku, argued before the full bench—comprising Gauteng High Court judges Colleen Collis and Selby Baqwa, as well as Free State High Court Judge Johannes Daffue—that the DA was targeting his client.
Hlophe’s punishment, if you want to put it, ended through his impeachment,” he said.
“The logic of the DA and Corruption Watch is anti-constitutional because what it says is that this court must target former judges who seek to play a meaningful role as citizens after their impeachment or removal.”
The lawyer stated that preventing Hlophe from serving on the JSC was limiting his rights as a Member of Parliament (MP) for the uMkhonto weSizwe (MK) Party.
“He is a member of the MK party and it has a right to nominate him for any committee or any constitutional body, which requires members of the National Assembly to be appointed.
Masuku stressed that neither the Constitution nor Parliament’s rules automatically disqualified Hlophe from being appointed to the JSC, despite his prior removal as a judge.
Advocate Dali Mpofu, representing the MK party, argued that the applications should not be entertained.
“This court should never allow itself to become the appeal tribunal of the National Assembly because that is what is being done. Our courts are being turned into a joke,” he said.
Mpofu stated that the DA would not run to court if Hlophe’s JSC appointment were to be blocked.
“We are here for one reason and one reason only, they lost a democratic vote in the Parliament of the people that represents all of us. This is not Parliament.”
He said the National Assembly’s vote to send Hlophe to the JSC, like his impeachment, was a political decision.
“On the basis of that, you want to condemn a person for life beyond the grave. You have condemned him, you have vilified him, you have booted him out of his job and now you go to the grave to dig the grave and say I want to kill you again.
“That’s what happening here. Let’s not glorify it with these pieces of paper. It is a lynching of black people,” Mpofu told the court.
Advocate Wim Trengove, for FUL which is asking for final relief, said the court could decide a constitutional issue and, citing case law, he said courts should not shy away from ruling in matters where a case had been made.
This in spite of a similar challenge by AfriForum pending before the Constitutional Court.
Trengove said the evidence showed MPs “had adhered to the convention”, and the ANC in particular, believed it had no choice because of a lacuna in the law in what was an unprecedented matter.
“Our case is not against Hlophe. It’s against the National Assembly that we say failed to exercise its public power in the public interest. That is why it’s unlawful.”
Advocate Michael Bishop, for the DA, which with Corruption Watch, is only seeking an interdict preventing Hlophe from sitting on the JSC pending a review or a decision by the apex court, said the legality of Hlophe’s impeachment was irrelevant and “we accept that he is an MP”.
This is not about amending the constitution to impose restrictions on impeached judges. It’s about applying the principles of rationality and complying with the constitution.”
Advocate Mitchell de Beer, for Corruption Watch, submitted Hlophe was impeached in February this year, relating to conduct in 2008 for attempting to influence Constitutional Court judges to find in favour of Jacob Zuma, and “the first thing he does is join Zuma’s political party”.
“We are here because he still refuses to appreciate the gravity of his conduct and the impact it could have on the independence of the judiciary.”
The judgment in the matter has been reserved.