Impeached Western Cape judge president John Hlophe confirmed to the SABC on Friday that he would lead the MK Party in parliament, and in a statement yesterday, parliament said it had "received an indication from the MK Party regarding the supplementation of their candidates list with a total of 21 members".
When the party delivered its list of MPs to the Electoral Commission Hlophe’s name was not on the list. It is not allowed, in terms of the Electoral Act, to change or review, the list for a year after elections.
But it may “supplement” its list in terms of item 15 of schedule 1A of the act. It has one opportunity to do so every year, but for limited reasons — one of which is to accommodate vacancies, but the schedule says that “any such supplementation must be made at the end of the list”.
Parliament said: "In accordance with the provisions of the Act, political parties may supplement or fill any vacancies that may occur on their candidates' lists prior to the first swearing-in after elections. This ensures that all designated seats are filled and that parties are fully represented."
In terms of item 22 of the schedule, the person who fills a vacancy must be the “next qualified and available person on the list”. This suggests that when Hlophe was added (or “supplemented”), it would have been the bottom of the list. Then, all the names ahead of him on the list must have declined or been otherwise unavailable for him to get within the 58 seats that the MK Party has been allocated.
Once an MP, there is no law preventing him from being a member of the Judicial Service Commission (JSC) — the body that recommends candidates for appointment as judges, even though he was found unfit to be a judge himself.
The constitution stipulates that the JSC should include “six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties”.
Before these elections, the six commissioners were three ANC MPs and one each from the DA, the IFP and the EFF. With the MK Party looking set to be the official opposition, it seems likely to provide one of the National Assembly’s delegates.
However, the JSC designates must be approved by the house. Names may be nominated by individual parties, but “it is a decision of the National Assembly,” said Bulelani Magwanishe, former ANC MP and a long-serving member of the JSC.
DA MP Glynnis Breytenbach, on the JSC since 2019, said this had, in her time, been done by consensus — with parties’ nominations going through the National Assembly on an order paper, with no objections.
“The house must make a decision, usually by resolution,” said Magwanishe.
It may be argued that it would be contrary to the purpose of the constitution for the majority to use its voting power to decide which of the minority parties’ MPs are acceptable
In 2019 there was an objection to the JSC list from the National Council of Provinces. Hansard records that the DA’s NCOP whip at the time, Cathlene Labuschagne, objected because no one was selected from opposition parties. Labuschagne said this was “unconstitutional, and is not in the spirit of representivity and definitely not in the spirit of democracy. I therefore call on the chair to include one of the DAs in the commission”, she said.
But the motion was passed, with only the Western Cape province voting against.
In the case of Hlophe, it is possible there could be an objection leading to a vote . A majority of members of the legislature could then vote against Hlophe being a JSC commissioner and require the MK Party to nominate another candidate. In this way, Hlophe would not be disqualified for the JSC by law, but the legislature would decide he is not its choice for the role.
However, it may be argued that it would be contrary to the purpose of the constitution for the majority to use its voting power to decide which of the minority parties’ MPs are acceptable.
Would it have been constitutional, for example, if, during the last parliament, the ANC had used its majority to reject the DA’s choice of Breytenbach, the EFF’s choice of Julius Malema or the IFP’s choice of Narend Singh for the JSC?
What would be the in-principle difference if the majority in parliament were to now reject Hlophe? Are these constitutional questions for the courts to decide or political ones for parliament to thrash out?
These may be some of the new and difficult questions faced by parliament in the coming weeks and months.
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