Civil society organisations have condemned the decision by the National Assembly on Tuesday to elect impeached judge John Hlophe, of the MK party, to represent the National Assembly on the Judicial Service Commission (JSC).
Judges Matter research and advocacy officer Mbekezeli Benjamin said the decision was contrary to the spirit, purport and objects of the constitution.
“It is plainly irrational in relation to the injunction by section 165(4) of the constitution, which requires that parliament takes measures to protect the independence and dignity of the courts,” he said.
“It is a cruel irony that aspirant judicial officers will be assessed on their ethics, integrity and fitness for judicial office by commissioners who themselves have been found guilty of misconduct. Judges Matter reiterates our call for a written code of conduct for all commissioners, with a mechanism to recall those commissioners who do not uphold the terms of the code.”
Freedom Under Law executive director Judith February said it was a “travesty” that someone who was found guilty of gross misconduct and stripped of his position as a judge was now in a position to decide on the suitability of other candidates for judicial appointment.
“It seems entirely irrational. It is also deeply contradictory that the ANC, which voted for the impeachment of Hlophe, has today voted in favour of his appointment to the JSC. The consequences of this for the JSC as an already hobbled institution will be significant, which is why this appointment may well be open to legal challenge.”
The ANC supported the MK's nomination of Hlophe by MK on the grounds that neither the rules of the National Assembly nor the constitution stipulate the qualifications required of an MP to sit on the JSC.
ANC chief whip Mdumiseni Ntuli said until the rules and constitution were amended to clearly define the situation, the established rules and practices of parliament that political parties could nominate their own representatives to the JSC had to be respected.
Only the DA, FF+ and ACDP objected to Hlophe's nomination, saying it was irrational and undesirable for an impeached judge to sit on the JSC, the role of which is to appoint judges to the judiciary. Build One SA leader Mmusi Maimane said that while rules allowed for Hlophe's appointment, he could not support it. However, he did not note a formal objection.
The fact that the ANC and DA took opposing positions was a sign that there was no agreement by the parties within the government of national unity (GNU) on the issue.
The other MPs elected to serve on the JSC are Molapi Soviet Lekganyane and Fasiha Hassan from the ANC, EFF leader Julius Malema,
DA MP Glynnis Breytenbach and ActionSA parliamentary leader Athol Trollip.
DA chief whip George Michalakis recognised the long-standing parliamentary convention allowing political parties to exercise their prerogative to make their own nominations to the JSC. There was also the argument that as long as one was fit and proper to serve as a member of the National Assembly, one was also fit and proper to represent it on other forums.
But Hlophe, he said, had been impeached for gross misconduct and it was incumbent on the National Assembly to act in a “reasonable and rational manner. We are strongly of the view that it is neither reasonable nor rational to elect Dr Hlophe as a representative of the National Assembly on the JSC”.
Also, Michalakis said, the National Assembly had a constitutional duty to protect the independence, impartiality, dignity and effectiveness of the judiciary. He warned that candidates before the JSC could object to Hlophe's presence and apply for his recusal on the basis that the finding of gross misconduct against him rendered him unfit to serve on a body whose task it is to determine the fitness and propriety of others.
“This poses the risk of paralysing the JSC and tying it up in endless review processes,” Michalakis said.
FF+ MP Wouter Wessels stressed that the decision on appointments to the JSC had to be rational. The lacunae in the constitution had to be addressed as it was not correct that an MP could be impeached by the National Assembly and then be fit and proper to serve on the JSC. ACDP chief whip Steve Swart agreed, saying the election of Hlophe to the JSC was wrong.
The MK party pointed out that neither the constitution nor the rules of the National Assembly regulated the qualifications of members of the JSC. MPs were bound by their oath of office. The party said Hlophe's legal qualifications — a graduate in law with a doctorate from Cambridge — made him an appropriate fit for the JSC. The electorate had voted for the MK party and it was “constitutionally repulsive” to erode the will of the people by attempting to dictate to the party who it should nominate to the JSC.
EFF chief whip Floyd Shivambu said the EFF fully supported Hlophe’s appointment. Anyone who was eligible to be an MP could be delegated to any function that MPs were eligible for. The IFP did not articulate a clear position either for or against Hlophe's appointment but did not object to it.
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