Hlophe and Zuma defend decision to send former judge president to JSC

Court challenges to his designation to the Judicial Service Commission (JSC) were “hopelessly unmeritorious”, said John Hlophe in court papers filed in the Western Cape High Court.

Hlophe, formerly judge president of the Western Cape High Court, was the first judge to have been impeached in South Africa’s democratic history. The leader of the MK party in parliament (and now its deputy president) was voted by the national assembly to be one of six MPs to sit on the JSC — the body that interviews and recommends candidates for appointment as judges.

The decision has been challenged in court in no less than four separate court cases, three of which were launched in the Western Cape High Court by the DA, Freedom Under Law (FUL) and Corruption Watch. This week and late last week, Hlophe and MK party leader Jacob Zuma filed their answering affidavits in the Cape court.

Responding to FUL, Hlophe said the case was based on a “fundamental misconception” about what the constitution said about the consequences of the removal of a judge. Unlike with the removal of a president (who once impeached is prohibited by the constitution from any public office and who loses his benefits), the constitution contained no similar provision when it came to impeached judges.

Under the constitution, judges can become MPs and do not lose their benefits, he said. The point of judicial impeachment was to protect judicial office, it was not a punishment. Once an impeached judge could become an MP, it followed that an impeached judge could become the president or the minister of justice. Both these offices were directly involved in the appointment of judges, he said.

“The absurdity of the FUL’s reasoning is that if I became a president of the Republic of South Africa or a minister of justice after the election, I would be barred from playing any role in the appointment or discipline of judges,” he said.

A portion of Hlophe’s affidavit responded to extensive allegations made by FUL about Hlophe’s ethical entanglements and its allegation that he used “Stalingrad” litigation tactics to avoid accountability, because the resolution of the 2008 gross misconduct complaint against him was mired in litigation for more than 14 years. Hlophe said FUL’s analysis was “deeply flawed” and “dishonest” since much of the delay was due to litigation that was not brought by him.

“Only a heartless and spite[ful] individual without a soul would believe that I have a propensity to litigate in [order] to avoid being held accountable,” said Hlophe.

He rejected FUL’s argument that there was, under the constitution, an implicit requirement that members of the JSC be “fit and proper”. He said FUL could point to no legal authority for this proposition. In terms of the constitution, the chief justice was a member of the JSC only by virtue of being the chief justice. So too with the president, the minister of justice and other JSC members.

“What qualifies six members of the national assembly is their membership of the national assembly. There is nowhere in the constitution that requires a member of the national assembly must be a fit and proper person outside their respective membership of the bodies represented on the JSC. Where the constitution imposes a fit and proper requirement it specifically says so,” he said.

Hlophe then pointed to other sections of the constitution that expressly required that a person be fit and proper for a post.

The DA’s reading of how the national assembly was supposed to make its decision was 'simply wrong'

In Zuma’s affidavit, the former president said FUL should have challenged a constitutional provision that allowed an impeached judge to be an MP. Or, it should have challenged the national assembly’s long-held practice that allowed opposition parties to nominate candidates of their choice for the JSC.

“The court cannot simply jump to interdicting Dr Hlophe himself from attending the JSC sitting when all the above decisions or provisions are allowed to remain intact,” said Zuma.

Zuma also took aim at the litigants, saying they had not in truth launched separate cases and the litigation was a “clearly co-ordinated campaign by right-wing, foreign-funded racist organisations”.

Zuma’s affidavit was a “composite” one responding to all three cases in the Cape court. He responded to the DA’s argument that the national assembly’s decision was based on a “material error of law” by the ANC because the ANC thought it was constrained to do what parliament had always done, which was to accept the nomination of the biggest opposition party.

Zuma said the decision was made by the national assembly and not the ANC. “The material error of law must be ascribed to the decisionmaker whose decision is being judicially reviewed, not some other third party which holds a minority of seats in the decisionmaker,” said Zuma.

In Hlophe’s affidavit responding to the DA, he said the DA’s reading of how the national assembly was supposed to make its decision was “simply wrong”.

The constitution gives the national assembly the power to make its own internal arrangements, proceedings and procedures, he said. “It has the power to determine, as they did in matters relating to the JSC, who and how its members should be designated to the JSC.”

The case is scheduled to be heard on September 5 and 6.