Three separate, urgent court cases have been launched challenging the National Assembly’s decision to send MK Party’s leader in parliament John Hlophe — the first judge to be impeached in democratic South Africa — to the Judicial Service Commission (JSC), the body that interviews and recommends candidates for judicial appointment.
“How can a person who has demonstrated that he will breach fundamental judicial ethics be trusted to evaluate whether candidates for judicial office have the character required of judges?” asked the DA’s Helen Zille in the DA’s court papers to the Cape Town high court.
All three sets of court papers — including those of AfriForum and Freedom Under Law (FUL) — reminded the courts what Hlophe was impeached for gross misconduct that went to the heart of judicial office.
The former Western Cape judge president was found to have tried, back in 2008, to influence two judges of the Constitutional Court to violate their oath of office and rule in favour of “particular litigants” in cases that were then pending before the apex court.
The cases were the “Zuma/ Thint matters”, and it was widely believed at the time a judgment in his favour would clear the path for Jacob Zuma, then president of the ANC, to ascend to become president of the republic.
How can a person who has demonstrated that he will breach fundamental judicial ethics be trusted to evaluate whether candidates for judicial office have the character required of judges?
— DA’s Helen Zille in court papers
The FUL’s court papers, also served at the Western Cape division, went further. Over 20 pages were dedicated to detailing Hlophe’s ethical entanglements — including the 2020 complaint by his deputy Patricia Goliath. If Hlophe had not been impeached for the 2008 complaint, he would still be facing impeachment at another Judicial Conduct Tribunal over Goliath’s complaint, which included that he had allegedly assaulted a colleague, Judge Mushtak Parker, in chambers and called Goliath a “rubbish” and a “piece of shit”.
FUL added that Hlophe’s “Stalingrad” attempts to delay accountability through litigation has cost the public purse about R10m, and that he had, in defending himself, “made scurrilous an unjustified allegations against various senior judges. as well as the judiciary as a whole”. Worse, said FUL, Hlophe “continues to undermine the credibility of the judiciary, even today. He still maintains his impeachment was “a political decision” and that he had done nothing wrong.
However, the issue is not a clear cut one, as there’s no express provision in the constitution or the law that prevents Hlophe’s designation to the JSC. All three organisations argued, however, that the decision was irrational in law.
AfriForum, which has approached the Constitutional Court directly, said the purpose of giving MPs the power to send some of their number to the JSC was to protect the courts and ensure the JSC maintains a strong independent judiciary.
It was the “quintessence” of irrationality to send Hlophe to the JSC given that purpose, said AfriForum’s Kallie Kriel, in court papers.
AfriForum and FUL both refer to the Constitutional Court’s judgment in the Menzi Simelane case. In that case, Simelane was appointed national director of public prosecutions (NDPP) by Zuma, but the then president ignored the findings of the Ginwala inquiry into the fitness for office of his predecessor, Vusi Pikoli. In her findings, Ginwala raised questions about Simelane’s own fitness for office. By ignoring these finding, Zuma’s appointment of Simelane was irrational, the Constitutional Court ruled.
“It is submitted that the same applies here,” said Kriel, adding it was “important” to point out the “similarities between these two cases”.
However, a difference between the Simelane decision and the Hlophe case is that the National Prosecuting Authority Act expressly requires that an NDPP must be “a fit and proper person”. There is no similar express provision for those designated by parliament to the JSC.
Speaker Thoko Didiza said as much in a letter to legal NGOs when they wrote to her raising concerns ahead of Hlophe’s appointment. Didiza said the constitution contained only two requirements in relation to the JSC designations by the assembly: “Firstly, that the person be a member of the National Assembly and, secondly, that half of the persons so designated be drawn from opposition benches. There are no further criteria ... there is no specific requirement that a member of parliament be ‘fit and proper’,” she said.
But FUL said in their papers Didiza was incorrect on this score. It said if the constitution was read purposively and in context, it required that National Assembly’s choices for the JSC must be “suitable”.
Looking at the constitutional text purposively, FUL’s Judith February said the “overarching purpose” of the composition of the JSC was “to safeguard judicial independence and to ensure public confidence in the appointment process of judges”. The appointment of Hlophe undermined that central purpose, she said.
When it came to the JSC’s MP members, the purpose was to inject a democratic element into the judicial selection process. “However, that democratic purpose is not achieved by appointing an individual who would undermine the public’s confidence in the JSC,” said February.
FUL argued that, in addition to the decision being irrational, it was made on the basis of a “material error of law”. The National Assembly had a duty to exercise its discretion, said February, but instead it thought it had no discretion.
[The AANC] said only that it did not believe it could deviate from the existing practice without an amendment to the constitution or the National Assembly rules
— DA’s Helen Zille
She said the transcript of the discussion preceding the decision showed the National Assembly had “the mistaken view” that once Hlophe was an MP, he was automatically eligible for appointment. And since he had been proposed by the MK Party, the National Assembly was obliged to accept “that candidate from that party”. Here, the National Assembly “made a fundamental error”, she said.
The DA concurred the decision was based on a material error of law. Zille did not refer to Didiza’s letter but dealt with ANC’s reasons for accepting Hlophe. The ANC’s chief whip Mdumiseni Ntuli said during the debate ahead of the motion that since there was no law or rules of parliament preventing Hlophe’s designation, “we are going to have to live on the basis of the established rules and practices in parliament”.
Established practice was that the biggest opposition party nominated its candidate; and this was accepted by the house. Zille said: “The ANC did not say that it was rational or consistent with judicial independence to designate Dr Hlophe. It said only that it did not believe it could deviate from the existing practice without an amendment to the constitution or the National Assembly rules.”
If the ANC, with its 159 seats, had appreciated that an absence of law or rules did not oblige it to accept Hlophe, the party “may well have voted together with the DA to oppose Dr Hlophe’s designation”, said Zille. If it had done so, he would not have been designated, she said.
Didiza, Hlophe, the MK Party and other political parties are yet to file their answering court papers.
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