Monday’s defeat in the Western Cape High Court for the MK Party and its leader in parliament, John Hlophe, was emphatic: the judges not only set aside parliament’s decision to send Hlophe to the Judicial Service Commission (JSC), they declared that Hlophe may not be designated to the JSC, even if parliament was to retake its decision in a lawful way.
And, with a stinging rebuke, the court ordered Hlophe and the MK Party to pay the costs of the litigation on a punitive scale.
“Dr Hlophe ... was found guilty of gross misconduct and removed from judicial office. He has refused to acknowledge the impropriety of his conduct and continues to engage in scandalous attacks on the judiciary. His presence on the JSC ineluctably undermines the legitimacy of the judicial appointment process,” said the judgment.
By Tuesday, the MK Party had already announced it would appeal the decision. “Asizodlalwa ngamajaji la,” (we will not be played by judges), said Hlophe at a media briefing, apparently unfazed by what the court said about his earlier public statements — they “underscore [his] ongoing efforts to undermine the judiciary” — and the resultant costs order.
Unless and until the order is overturned on appeal, Hlophe’s JSC goose is cooked. While the appeal works its way through the system, there is an interim interdict in place that prevents him from participating at the JSC and the Constitutional Court has refused an application to appeal it.
Hlophe had, in any event, resigned from the JSC. But his party had previously said it had no intention of nominating any other MP to be one of the National Assembly’s six to sit on the JSC. The party will now have to decide whether to stick to that position while the appeals process plays out or nominate someone else. Next month the JSC will meet to interview for a deputy chief justice and in October there will be a bumper round of interviews, including for two posts at the Constitutional Court.
The judgment may also have longer-term implications for how parliament chooses MPs for the JSC. Up until Hlophe was designated, the process had always been uneventful. The constitution has only two explicit requirements when the National Assembly designates to the JSC: there must be six MPs, three of whom must come from opposition parties.
Up until now, political parties agreed ahead of time, based on their numbers, which of them got to nominate delegates. The choices of the political parties were acceded to in the house and a motion passed with no debate.
We are enjoined to interpret constitutional provisions in a manner that promotes the values of an open and democratic society based on human dignity, equality and freedom
Even though the Hlophe case was heard in the Western Cape High Court, judges were brought in from other divisions because Hlophe had formerly been the Western Cape’s judge president.
In their judgment, Free State acting judge president Nobulawo Mbhele and Gauteng judges Annali Basson and Thifhelimbilu Mudau emphasised that there was a difference between the nomination process (by political parties) and the designation process (by the National Assembly).
The judges said the designation had to be lawful and rational (in law). It also had to be taken in line with the constitutional requirement that parliament must “assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness”.
This meant that, when parliament was deciding who to send to the JSC, it was required to consider who was suitable, said the judges. “Even if [the constitution] does not explicitly prescribe to the NA that members to be designated to the JSC must be ‘fit and proper’, we are enjoined to interpret constitutional provisions in a manner that promotes the values of an open and democratic society based on human dignity, equality and freedom,” said the judges. They also had to consider principles like the rule of law, integrity and public trust, they said.
The National Assembly must designate individuals who “are not only formally eligible but who are also substantively suitable,” they said.
Hlophe was not such an individual, said the judgment. It was not only because he was found guilty and impeached for gross misconduct. The judgment dealt at length with “events after the impeachment of Dr Hlophe”. The judges said Hlophe had sought to circumvent the consequences of the interdict that precluded him from sitting on the JSC, that he, and the MK Party, made public statements attacking the judiciary and Hlophe “made it clear that he planned to promote in the JSC the conduct that led to his impeachment”.
The judges said when parliament was making its designation decision, it did not consider whether Hlophe was suitable for appointment to the JSC. MPs thought they were bound by his nomination by the MK Party and parliament “mistakenly laboured under the impression that it did not have a discretion”. It was a rubber-stamping exercise, they said.
However, the judgment did not explain why it rejected the argument, made by the MK Party, that, in fact, Hlophe’s designation was debated at length, and then voted on, in parliament. This was a break from the way it had been done previously and could not be considered a rubber-stamping exercise, argued Dali Mpofu SC in court.
The decision was also irrational in law, said the judges. The purpose of the JSC is to ensure judicial independence and to promote public confidence in the judicial appointment process by recommending fit and proper candidates for appointment as judges.
Hlophe’s designation was not rationally connected to that constitutional purpose as he was “plainly unfit to assess the suitability of candidates”.
The court was careful to say this case was not about whether impeached judges could ever sit on the JSC but dealt with “the peculiar facts surrounding Dr Hlophe’s designation”. Should the finding stand, it remains to be seen what the injunction that parliament must send “fit and proper” individuals to the JSC means in practice.
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