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Wednesday, 10 July 2024 12:24

John Hlophe's election to JSC to be challenged in court.

By Lehlohonolo Lehana.

Civil Society Group Freedom Under Law (FUL) to legally challenge the National Assembly's decision to designate MK Party MP John Hlophe as one of its representatives on the Judicial Service Commission (JSC).

The impeached Western Cape judge president is one of six National Assembly members who will serve on the JSC. 

On Tuesday the National Assembly elected Hlophe to the JSC, together with Molapi Lekganyane, Fasiha Hassan, Glynnis Breytenbach, Julius Malema and Athol Trollip, to represent Parliament.

Hlophe was removed from his office as a judge for gross misconduct after it was found that he tried to influence Constitutional Court justices.

The finding of gross misconduct was made by the JSC and the courts, and Parliament impeached him.

Freedom Under Law says it is inappropriate and irrational for an individual who was found to have committed gross misconduct and removed from judicial office to now be in a position to decide on the suitability of candidates for judicial appointment.

"It is well known that Hlophe was removed as a judge for committing serious misconduct, and to have someone who has those adverse findings against him be involved in the appointment of judges is completely inappropriate, irrational and undermines public confidence in the judiciary and legal system," said Freedom Under Law's Chris Oxtoby.

"We strongly believe that it is susceptible to legal challenge, and it was a mistake for Parliament to have voted for his designation as JSC commissioner," Oxtoby added. 

FW de Klerk Foundation constitutional programmes manager Daniela Ellerbeck said appointing someone found guilty of gross misconduct that led to them being removed as a judge, to the same institution that found them guilty and is responsible for disciplinary proceedings against judges, raises serious questions about whether this crucial institution will be compromised. 

"Although Hlophe swore to uphold and respect the law and Constitution as an MP, his impeachment for previous conduct stands in stark contrast to this oath of office. Impeachment is a serious issue," Ellerbeck said. 

She highlighted that Hlophe was also a controversial MP, because he was not on the MKP's pre-election candidate list submitted to the Independent Electoral Commission.

Constitutional law experts assert that, because Hlophe was not on the list, his later inclusion and swearing-in as an MP was "illegal and unconstitutional," said Ellerbeck. 

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.