Freedom Under Law asks high court to set aside Hlophe’s appointment to JSC

The NGO argues that disgraced judge cannot serve on a constitutional body he has constantly attacked

Freedom Under Law (FUL) has filed for legal review of opposition leader John Hlophe’s appointment to the Judicial Service Commission (JSC), becoming the third applicant to ask the courts to bar him from serving on the same body that recommended his impeachment.

Like the Democratic Alliance (DA), Freedom Under Law has approached the Western Cape high court on an urgent basis.

Both argue that it is imperative that the court intervenes before the JSC convenes in October to interview candidates for positions for the constitutional court, the appellate court and several within its own division, including that of judge president.

It is the post Hlophe held before he was removed from the bench five months ago, becoming the first judge to suffer this fate in the democratic era.

In its founding affidavit, Freedom Under Law recalled that Hlophe was impeached for the “most serious of reasons”.

“Dr Hlophe breached the principle that no outsider — whether they be members of government, pressure groups, individuals or even another judge — should interfere or attempt to interfere with the way in which a judge conducts his or her case and makes his or her decision,” Freedom Under Law’s executive officer Judith February wrote.

The Judicial Conduct Tribunal found that Hlophe had breached the Constitution and the judicial code of conduct by raising pending rulings relating to former president, and now uMkhonto weSizwe (MK) party leader, Jacob Zuma’s arms deal corruption case with two constitutional court justices.

The tribunal said he appeared to have been on a politically motivated “mission” to sway justices Chris Jafta and Bess Nkabinde when he tried to raise the matter with them in separate meetings in 2008, a year before Zuma became president.

The JSC endorsed its finding of gross misconduct. Hlophe launched a legal challenge but it was scathingly dismissed by the Johannesburg high court, paving the way for parliamentary impeachment. In February, the National Assembly voted by 305 to 27 that he should be removed from the bench by the president. 

A few months later, Hlophe was sworn in as an MP for Zuma’s MK party and named its leader in the legislature, although he did not feature on its list of candidates in the May elections.

February said from a factual perspective, the Hlophe case was without precedent, anywhere in the world.

Freedom Under Law is asking the court to set aside his appointment and send the matter back to the National Assembly. It sets out four grounds for review. 

First, it said, the decision of the National Assembly was based on a material error of law in that it failed to exercise the discretion granted to it by the Constitution in section 178(1)(h).

“In fact, it appeared not to have realised that it had a discretion at all.”

The error was fundamental, Freedom Under Law said, because the assembly had a duty to exercise the discretion and this alone was sufficient reason to strike down its decision.

Referring to correspondence from speaker Thoko Didiza, as well as ANC chief whip Mdumiseni Ntuli’s comments in the chamber, February said both clearly expressed the view that the law and the rules of parliament contained a lacuna because neither expressly precluded an impeached judge from sitting on the JSC.

“This interpretation is incorrect … the National Assembly’s power to ‘designate’ does not mean that any six members of parliament nominated by political parties would suffice, and that the National Assembly is blindly bound to accept any candidate which is put forward,” she said.

“FUL submits, with respect, that the National Assembly’s construction of section 178(1)(h) of the constitution is untenable.”

The chamber as a collective held the power to select its representatives to the JSC but it abdicated that power to a minority party by believing its hands were tied in opposing the MK party’s nomination of Hlophe.

The constitutional court has made clear, Freedom Under Law argued, that those who designate individuals to serve on the JSC must take their task seriously and identify suitably qualified people.

Didiza was therefore wrong when she wrote to Freedom Under Law on 9 July that “there are no further criteria” for naming six representatives to the commission other than that they be members of the assembly and that half be from the ranks of the opposition.

The speaker had stressed: “In the context above, it should be noted that there is no specific requirement that a member of parliament be ‘fit and proper’.”

But February argued that though there was no express constitutional requirement that the president or the national director of public prosecution must be fit and proper, a proper interpretation showed that it was plainly implied. The same was true for JSC members.

“A former judge who was removed for gross misconduct, and because his continued role in the judiciary poses a threat to the public’s confidence in the judiciary, is plainly not a suitable person,” she said.

The second ground argued by Freedom Under Law is that the assembly’s decision went directly against section 165(4) which enjoins organs of state to protect the independence, impartiality, dignity and effectiveness of the judiciary.

“FUL submits that the National Assembly’s decision is unlawful and unconstitutional as it frustrates — rather than assists or protects — the requirements in section 165(4).”

February said Hlophe was not only unfit to serve on the JSC because he was removed for gross misconduct, but because of his relentless attacks on the commission, which added to the delays in a disciplinary process that took almost 16 years to complete.

“He is unfit to be a member of the JSC because he has continuously — without any factual or legal basis — sought to undermine the credibility of the JSC, the fair process it conducted into the allegations against him, as well as the decisions by our highest courts, senior judges and the National Assembly.”

Hlophe has challenged the judicial tribunal’s reading of the judicial code and cast his impeachment as a political conspiracy, telling the media after he was sworn in as a member of parliament that his impeachment had no basis in law.   

“Dr Hlophe has not atoned for his conduct,” February wrote. 

“He remains — despite all the findings against him — unrepentant and recalcitrant.”

He would be of no help to the commission in deciding whether aspirant judges are deserving of appointment because his view on what is required of members of the judiciary is wrong, February added. But there was the further risk that his views might be persuasive to lay members of the panel.

In the third instance, Freedom Under Law argues that his appointment was irrational because the assembly did not exercise its power for the purpose for which it was intended. Members of parliament who were designated to serve on the JSC were there to lend “a democratic element” to the selection process, to avoid having a judiciary out of touch with popular sentiment or one that would work actively to undermine other arms of state.

This purpose was not served by a commissioner who would undermine public confidence in the process and who has a history of challenging the authority of the courts, senior judges and the JSC itself, February said.

In the final instance, Freedom Under Law argued that the National Assembly took into account irrelevant considerations, including the tradition of respecting the choices made by political parties when they nominate members to serve on the JSC.

The apex court has made clear, it said, that political practice and custom may not unjustifiably stand in the way of parliament complying with constitutional prescripts, in this case section 178.

Freedom Under Law is asking the court to set the decision aside and refer the matter to the assembly for reconsideration. 

The DA seeks the same remedy, and sets out similar grounds for review, but is also seeking an urgent interdict barring Hlope from taking part in the JSC’s October round of interviews.  

It argued that if the court were to find that his appointment was indeed unlawful, his participation in the October process would be unlawful by extension. This would render the JSC’s advice to President Cyril Ramaphosa as to who should fill the vacant positions unlawful. 

Freedom Under Law agrees with this point but instead of applying for an interdict, it is asking the court to hear its case on an expedited basis to provide clarity on the composition of the JSC before the interviews start on 7 October.

It suggested that the case be heard at the same time as the DA’s application.

Afriforum is also challenging Hlophe’s appointment but has approached the constitutional court directly.