AfriForum asks ConCourt to ‘protect SA’s judiciary’ in Hlophe JSC saga

AfriForum has appealed to the Constitutional Court to intervene and “protect SA’s judiciary and constitutional democracy” by declaring disgraced former Western Cape judge president John Hlophe’s designation to the Judicial Service Commission “irrational, unlawful and unconstitutional”.

The civil rights organisation turned to the apex court on an urgent basis after Hlophe’s appointment as one of six MPs to serve on the JSC by the National Assembly. This came five months after Hlophe was impeached as a judge for gross misconduct by the same body.

Freedom Under Law (FUL) is also challenging this move legally, arguing that the designation of members of the National Assembly to the JSC was not equivalent to assigning members to portfolio committees within the assembly. FUL said 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,” FUL said.

AfriForum CEO Kallie Kriel, in an affidavit supporting the application, argued that “it would, among other problems, be inappropriate that aspirant judges be assessed on their ethics, integrity and fitness for judicial office by Hlophe when he himself was found — by the very body he will now join, and as confirmed by the courts — guilty of gross misconduct and unfit to hold judicial office.

“This can only undermine the credibility of the JSC and the integrity of the judiciary, both of which are crucial to the rule of law and constitutional democracy in SA”.

Kriel argued that not only was Hlophe’s designation “irrational” but it was also “inconsistent with the spirit, purport and objects of the constitution and rule of law”.

He also cited that the JSC had “on several occasions” been found to have acted unlawfully by the courts, including how public interviews were conducted, and said that this made it imperative for those designated to it to have shown their commitment to upholding constitutional democracy, “the rule of law and the independence of the judiciary”.

Kriel also set out arguments on the court’s jurisdiction to hear the matter, the urgency, background facts and the rationality review, among other issues.

On the first, he said that AfriForum's case “falls for exclusive determination by this court” in terms of section 167(4)(e), “which gives only this court the authority to determine whether parliament has failed to fulfil its constitutional obligations”.

Kriel argued that the issue was urgent, given that the JSC was set to sit in October to appoint new judges.

“This first problem with allowing Hlophe to sit on the JSC during the October interviews will be undermining the public’s trust in the SA parliamentary and legal system.

“Other problems with allowing Hlophe as a member of the JSC to partake in the determination of these interviews appear. Judges (including those applying for the vacant judge president of the Western Cape — following the widely publicised animosity between Hlophe and acting judge president [Patricia] Goliath and the attendant drama) might ... apply for Hlophe’s recusal [and] this would delay proceedings,” he said.

Another problem Kriel cited was that the legality of the interviews might be questioned and susceptible to review, which would delay appointments.

Kriel said it was not possible at this stage to understand parliament’s reasons for designating Hlophe, given the way it was carried out, but he cited the reasoning that the MK party’s then chief whip, Sihle Ngubane, gave: “[That] since members who qualify to be in the JSC are MPs and therefore bound by their oath of office. The constitution, in its wisdom, does not regulate the qualifications of members to sit on the JSC.” 

He concluded by arguing that parliament’s designation of the former judge was “in substance and reality a violation of its constitutional duty not to interfere with but rather to assist and protect the courts”.

“Dr Hlophe was found guilty of defying and violating both these duties. Parliament’s designation is therefore irrational, unlawful and unconstitutional. To protect SA’ judiciary and its very constitutional democracy requires this court’s intervention,” he said.

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