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Freedom Under Law executive director Judith February. Picture: Supplied
Freedom Under Law executive director Judith February. Picture: Supplied

The election of MK chief whip John Hlophe as a member of the Judicial Service Commission (JSC) is to be legally challenged by Freedom Under Law, while the ANC has said that the parliamentary rules that allowed him to be elected need to be changed. 

Hlophe, who was impeached for gross misconduct, was one of six members of the National Assembly elected to the JSC on Tuesday with the DA, FF+ and ACDP opposing. 

Freedom Under Law executive director Judith February said the organisation “will be challenging Dr Hlophe’s designation as a member of the JSC on rationality and rule of law grounds”. 

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

“The constitution requires 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.” 

The ANC supported Hlophe’s election saying the constitution and rules did not prohibit it. 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. 

ANC acting spokesperson Zulo Godlimpi said the rules allowing Hlophe’s election had to be changed. 

“The discontent about John Hlophe’s nomination is valid and the ANC position on the JSC discussion in the house was not to say there is no basis for concern,” he said. He said that the rules of parliament need to be revised.

“What we need is clarification of the fit and proper requirement in the current form of Section 47 of the constitution. For instance, section 47(c) categorically rules out an insolvent person from being fit and proper for parliamentary membership. 

“The same does not exist in legislation for the determination of the ‘fit and proper’ standard for the impeached. We have to solve it in section 47 as it was contemplated for financial prudence by barring unrehabilitated insolvents,” Godlimpi said. 

In response to a letter from February, Speaker of the National Assembly Thoko Didiza said the constitution included two requirements in relation to the designation of persons by the National Assembly to serve on the JSC — that they be an MP and that half the persons (3) be drawn from opposition parties. There was no specific requirement that an MP be fit and proper. 

“This is no doubt in part because the inclusion of public representatives on the JSC is premised on the fact that these persons represent the electorate, rather than because of any special or specific expertise or capabilities as is the case with other legal experts and members of the judiciary who serve on the JSC,” Didiza wrote. 

Notwithstanding this, she said MPs were duty-bound to act in an ethical manner and uphold the constitution. 

“Ultimately the decision to designate Dr Hlophe or any other member to the JSC will rest with the collective of the National Assembly.” 

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. 

ensorl@businesslive.co.za

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