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Image: Polity
The parliamentary Judicial Services Commission (JSC) interviews for magistrates and judges, an important annual event in the judiciary’s calendar for the month of October, will take place without impeached judge and MK Party parliamentary leader Dr John Hlophe. This after the Western Cape High Court on Friday granted applicants in the matter calling for Hlophe’s removal from the JSC an interdict to remove him from all JSC business. Hlophe may not participate in JSC proceedings pending a further hearing of the matter by the Western Cape High Court, or that of another application by AfriForum, currently before the Constitutional Court. The AfriForum application is for Hlophe’s permanent removal.
In its judgment for Corruption Watch (CW) as one of the applicants, the High Court did not spare the National Assembly (NA) the rod, noting the abdication of its duties and responsibilities to the courts.
CW, along with the other two applicants Freedom Under Law and the DA, argued that the inclusion of Hlophe in the commission was irrational, following his impeachment by the very same Parliament earlier this year. Hlophe became a member of Parliament after this year’s elections, and was sworn in as part of the first group representing the MK Party, in July. Soon thereafter, the party announced him as its parliamentary leader, as well as a nominee for the JSC.
The NA stayed the establishment of the MP component of the commission due to a motion by the ANC’s Mdumiseni Ntuli on 2 July, to allow all parties to deliberate over the nominations. When the reviewed list came back still with Hlophe’s name, Speaker Thoko Didiza declared that the MK could nominate any of its members to the commission, as they could to any other parliamentary committee. There were further objections from the DA, Freedom Front Plus, and the African Christian Democratic Party.
The judgment notes: “The inclusion of Dr Hlophe’s name on the list of nominees prompted objections, a situation that had never arisen before. The Speaker responded in writing to letters from non-governmental organisations pertaining to the issue and explained that there was no barrier to the nomination of Dr Hlophe, or any other MP, for consideration as a designated member of the JSC.
In dealing with the objections, the Speaker allowed for a debate to be carried out over the nominations, before stating that: “a political decision is ultimately taken with the passing of a motion to give expression to designation in terms of section 178 of the Constitution, as per the general rules of the National Assembly.”
It was on that note that she allowed Hlophe’s name to go through.
In relation to CW’s application, the court found that the organisation has made a strong prima facie case which warranted the outcome to interdict Hlophe in the interim. In the ruling, it found that the NA had impermissibly fettered its discretion by following the dictates of a convention in allowing Hlophe’s name to go through.
“In doing so, the NA had failed to recognise that it had such a discretion at all, but merely accepted the MK Party’s nomination of Dr Hlophe because it was an opposition party and thus entitled to make an appointment.”
Furthermore, the NA failed to uphold its obligations under Section 165 (4) of the Constitution to support and protect the independence of the courts. The judgment further noted that rules of Parliament are at all times subject to the Constitution as well as the rule of law.
“Given that the JSC performs a vital role in the appointment of judges, it was critical that the designation process be taken seriously and that only those suitably qualified persons should be appointed.
“The NA’s decisions were required to be rationally connected to the purpose for which the power had been conferred by the Constitution and that, prima facie, the NA had failed to act in a rational manner.”
Hlophe’s appointment, given that he had been removed as a judge for serious misconduct, undermined the independent, dignity, and effectiveness of the courts, said the court. “There was no evidence that the NA had considered its obligation to ensure that only suitably qualified persons were appointed to the JSC.”
CW executive director Karam Singh welcomed the judgment, saying it is “a strong indication of the importance of the rule of law, and that the courts will subject state action to principles of legality and rationality rather than an ill-considered convention decision made by Parliament.”
