By Bongekile Macupe.
The Western Cape High Court has dismissed an application by MK Party deputy president John Hlophe and his party for leave to appeal an interim order preventing him from being a member of the Judicial Service Commission (JSC).
Hlophe was prohibited from participating in any JSC activities pending a review of the National Assembly’s (NA) decision to designate him for the body.
The DA, NGOs Freedom Under Law (FUL) and Corruption Watch, approached the Western Cape High Court to review the NA’s decision to designate Hlophe to the commission.
In September, a full bench ruled in favour of the DA and the two NGOs. The MK Party then appealed the decision. The MK Party also launched an urgent application in the Gauteng High Court to halt the JSC interviews until Hlophe could be part of them. The interviews were in October.
That application also failed, and the JSC interviews continued. Subsequent to the dismissal of the urgent application, Hlophe resigned from the JSC.
In the judgment delivered by the full bench on Friday, the judges ruled that there were no “prospects of success” in the appeal brought by the MK Party.
“Generally, but significantly, the grounds of appeal by both Dr Hlophe and the MK Party are, for the most part, a repetition of the arguments before this court, which were dismissed in the judgement sought to be appealed against. The MK Party makes a concerted effort to convince this court that there are sufficient grounds for an appeal to be heard regarding this matter by the Supreme Court of Appeal. It argues its case based on about twenty-five grounds,” the judges found.
“It is trite, however, that such a high number of grounds may, on the contrary, suggest a lack of prospects of success.”
The court also found that with Hlophe having resigned from the JSC, his matter had become moot. Therefore, there was no reason for the Supreme Court of Appeal to hear it.
It added: …Whilst it is true the Supreme Court of Appeal has the discretion to hear moot matters, it only exercises such discretion to entertain moot matters where an appeal raises discrete issues of public importance which would influence future matters… [with] Hlophe, having exited the JSC, there are no such matters for the SCA to consider.
The judges further found that the application did not provide any compelling reason why an appeal should be heard against the order the court had granted on the matter.
They also dealt with the press release that the MK Party released after the Western Cape High Court ruled in favour of the DA, FUL and Corruption Watch, recusing Hlophe from the JSC.
The statement attacked the judiciary, the DA and the two NGOs – going as far as accusing FUL and Corruption Watch of being “racists” and “agents of white monopoly capital”.
“This wanton attack on the judiciary cannot and shall not be tolerated by our courts in the interests of preserving the rule of law and safeguarding the institutional integrity of our judicial system,” the judgment reads.
The full bench further described the statement by the party as “deeply offensive”.
“Describing a judgment in the terms quoted above is deeply offensive, disrespectful and contemptuous. It grossly exceeds the bounds of legitimate comment and is deliberately intended to impugn the dignity and effectiveness of the court and the judiciary.”
It added: Instead of dealing with the facts and the law, the applicants chose to attack the respondents utilising baseless and highly defamatory statements that FUL is racist and an ‘agent of white monopoly capital’. This smacks of gutter politics and can hardly be expected of an organisation that represents voters in Parliament.
The judges added that the press release was not only a “wholly unjustified attack” on the court’s decision and the judiciary, but also reflected poorly on the MK Party and the individuals who drafted and issued it.
It also said that MKP president Jacob Zuma and Hlophe had not “publicly distanced themselves from the scandalising statement made of this court”.
“Section 173 of the Constitution provides the basis upon which the Court is entitled to protect its processes. This is more the case when some members of one of the three arms of government go on a frolic of their own to nonchalantly scandalise and denigrate the third arm government contrary to the explicit provisions of the Constitution,” the judgment reads.
“It is Constitutionally imperative for all organs of State – including the courts themselves – to take it upon themselves to stem the tide of unbridled and contemptuous attacks that some individuals and even political parties wish to unleash on our judiciary processes and the rule of law which is the cornerstone of our democracy.”
The MK Party has yet to respond to the judgment.
In February, Hlophe became the first sitting judge to be removed in a democratic South Africa.
Hlophe’s removal followed a JSC process that found him guilty of gross misconduct for trying to sway two Constitutional Court judges to rule in Zuma’s favour in the arms deal corruption case in 2008.
In June, he was sworn in as an MP for the MK Party, becoming the leader of the opposition in the same National Assembly that removed him.