Freedom Under Law to legally challenge Hlophe's designation to JSC

MPs 'fell short' by choosing someone already deemed unfit to be a judge

Former Western Cape judge president and uMkhonto weSizwe Party leader in parliament, John Hlophe, at the swearing-in of MPs in Cape Town.
Former Western Cape judge president and uMkhonto weSizwe Party leader in parliament, John Hlophe, at the swearing-in of MPs in Cape Town.
Image: Brenton Geach

NGO Freedom Under Law (FUL) says it will legally challenge the National Assembly's decision to designate MK Party MP John Hlophe as one of its representatives on the Judicial Service Commission (JSC) on the grounds of rationality and the rule of law.

On Tuesday, the National Assembly designated Hlophe as one of its six members to serve on the JSC. Four months ago, the same assembly impeached Hlophe, then judge president of the Western Cape, for gross misconduct.

In a statement, FUL said to have a situation where an individual who was found to have committed gross misconduct and was removed from judicial office, and now is in a position to decide on the suitability of other candidates for judicial appointment, was wholly inappropriate, irrational and susceptible to legal challenge.

“It is also hard to reconcile the contradictory position of political parties which voted for Dr Hlophe to be removed from judicial office but now voted in favour of his appointment to the JSC.

“This was an early test for all the parties forming the government of national unity to take a position which would ultimately strengthen the credibility of the JSC and the rule of law. All parties who did not object to the nomination today are, by their silence, implicated in this egregious decision.”

FUL said the designation of members of the National Assembly to the JSC was not equivalent to assigning members to portfolio committees within the assembly. But the constitution required organs of state to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness.

“By designating an individual who has been found unfit to be a judge to the body responsible for the selection of judges, the National Assembly has fallen short of this duty.”

In objecting to Hlophe’s designation, DA chief whip George Michalakis said it was neither reasonable nor rational to elect Hlophe as a representative of the National Assembly on the JSC.

Michalakis said another reason parliament should not elect Hlophe was to be found in the constitutional obligation that members of the National Assembly were enjoined to assist and protect the judiciary to ensure its independence, impartiality, dignity and effectiveness.

“Even if the majority today holds the view that any person who is fit and proper to be a member of Parliament is fit and proper to serve on the JSC, it must follow that a large number of applicants to be interviewed by the JSC will object to and apply for the recusal of Dr Hlophe, on the basis that the finding of gross misconduct renders him unfit to serve on a body that is to determine the fitness and propriety of others.

“This poses the risk of paralysing the JSC and tying it up in endless review proceedings. If we are to assist and support the judiciary, we must today refrain from exposing the JSC to this risk.”

The MK Party, however, argued that by virtue of being an MP, Hlophe qualified to sit on the JSC. 

“Members who qualify to be in the JSC are already MPs and therefore bound by their oath of office. The constitution, in its wisdom, does not regulate the qualification of members to sit on the JSC,” said MKP’s chief whip Sihle Ngubane.

Ngubane said politicians carried the mandate of the electorate and could not be excluded from structures such as the JSC, arguing it would muzzle the voice of the electorate.

“Privileges of the MKP according to its votes are constitutionally protected. The attempt to erode the will of the people by dictating to the MKP which of its preferred candidates are to be designated to the JSC is constitutionally repulsive,” Ngubane added.

The ANC, MKP, EFF, UDM, ATM, Al-Jama-ah and UAT supported Hlophe’s nomination, while the DA, FF Plus and ACDP objected.

Hlophe is part of a six-member team including the ANC's Soviet Lekganyane, Fasiha Hassan, the DA's Glynnis Breytenbach, the EFF's Julius Malema and ActionSA's Athol Trollip to serve on the JSC, the same body that made adverse findings of gross misconduct against him, leading to his impeachment.

When Hlophe was found guilty of gross misconduct by the JSC tribunal, and the JSC confirmed that finding, Hlophe appealed to the courts and FUL joined the application and participated to argue against Hlophe' challenge of the JSC decision.



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