Hlophe's designation to JSC unlawful and unconstitutional, says high court

The Western Cape High Court on Monday ruled that it was invalid and unconstitutional for the National Assembly (NA) to designate MK Party deputy president John Hlophe as a member of the Judicial Service Commission (JSC).

The court said it was concerning that Hlophe continues to refuse to acknowledge any wrongdoing or accept accountability, despite the adverse findings made against him by the judicial conduct tribunal, the JSC and the court.

The court also slapped Hlophe and the MK Party with a punitive costs order because of their statements they made that underscored their ongoing efforts to undermine the judiciary.    

In February last year, Hlophe became the first judge in democratic South Africa to be removed from office by parliament for gross misconduct.

Hlophe then became an MP for the MK Party. Last year, the NA designated six MPs, including Hlophe, to serve on the JSC. The lawfulness of the decision was challenged by the DA, Freedom Under Law (FUL) and Corruption Watch. 

In September last year, three urgent applications by the three parties challenging the assembly's decision to designate Hlophe were heard simultaneously by the Western Cape High Court.

The DA and Corruption Watch sought interim relief under Part A of their applications, interdicting Hlophe from participating as a JSC member pending the outcome of the proceedings in Part B.

FUL sought final relief through the judicial review. The full court last year granted the interim interdicts sought by the DA and Corruption Watch. It also said FUL's application would be heard simultaneously with Part B of the DA and Corruption Watch applications.

The court judgment on Monday said the matter before it concerned two narrow questions.

First, whether the NA properly exercised its right and duty to consider whether Hlophe was suitable for designation to the JSC. Second, whether Hlophe, who had just been recently removed from the judicial office for gross misconduct and continued to denigrate and denounce the judicial system, was suitable for appointment.

The applicants relied on a number of grounds for review of the NA's decision.

One was that the NA committed a material error of law as it failed to properly exercise its discretion when it designated Hlophe to serve on the JSC, acting on the mistaken belief that his position as an MP and his nomination by the MK Party completed his designation.

Another ground was that the decision to designate Hlophe, a judge recently impeached for gross misconduct, was unreasonable and irrational. They said the purpose of the JSC was to foster public confidence and respect for the judiciary and the rule of law. Designating an impeached judge who had demonstrated a complete disregard for the judiciary's integrity to participate in appointing judges undermined this purpose.

The speaker of the NA indicated she would abide by the decision of the court. The MK Party and Hlophe opposed the application.   

The court said the decision by the NA fell to be set aside on the basis that it failed to properly consider relevant considerations, but instead considered various irrelevant considerations in arriving at its decision.

“The NA was obliged to consider a glaringly relevant fact, namely that the NA had recently impeached Dr Hlophe for gross misconduct.”

The court said the NA, similar to all other organs of state, was bound by the constitution and required to comply with the constitutional obligation it imposed.

“We are satisfied that the decision to designate Dr Hlophe must be reviewed and set aside on each of the grounds advanced. The NA's decision is inconsistent with ... the constitution.

“This inconsistency, in and of itself, renders the decision unlawful. The National Assembly's designation of Dr Hlophe was neither a lawful nor rational decision considering his impeachment and the reasons thereof,” the court said in its judgment.

In awarding a punitive costs order, the court said that after the full court had granted an interim interdict in Part A of these proceedings last year, Hlophe had launched an attack on the credibility of the presiding judges.

When refusing leave to appeal against the punitive costs order, the full court made reference to certain remarks made by the MK Party and Hlophe after its judgment in Part A. It said the wanton attack on the judiciary could not and should not be tolerated by courts in the interests of preserving the rule of law and safeguarding the institutional integrity of the justice system.

The court on Monday said, notwithstanding the findings of the full court regarding these public statements, both Hlophe and the MK Party continued to stand by those statements in their supplementary answering affidavits in the review proceedings.

“It is concerning that Dr Hlophe continues to refuse to acknowledge any wrongdoing or accept accountability, despite the adverse findings made against him by the [judicial conduct tribunal], the JSC and the courts. He maintains that the conduct that was found to constitute gross misconduct should be permissible among judges.”

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