In 2021, the JSC upheld a Judicial Conduct Tribunal ruling that Hlophe committed serious misconduct by referring a pending ruling in the arms deal corruption case of former president and now MK leader Jacob Zuma to two Constitutional Court judges. File photo
AfriForum has filed papers in the Constitutional Court seeking to set aside as unconstitutional and illegal the appointment of John Hlophe to the Judicial System Commission (JSC), made four months after his impeachment.
Civil rights groups argued that the appointment of Jacob Zuma’s Umkhonto weSizwe (MK) party as the new Speaker of Parliament breached the legislature’s duty not to interfere in the functioning of the courts and to protect the independence, dignity and impartiality of the courts (Article 165) and betrayed the spirit of the Constitution.
“It is the height of absurdity that Parliament, despite its constitutional duty to protect and support the courts, appointed Mr Hlophe to the JSC and put him in charge of selecting judges, despite him being found guilty of assaulting and disregarding his duty to support and protect the courts and not to disrupt their functioning.”
AfriForum CEO Karrie Kriel said in her founding affidavit:
“Among other matters, it is inappropriate for the ethics, integrity and fitness of an aspiring judge to be assessed by Mr Hollofe when he has been found by the body he is about to join, and as confirmed by the court, to be guilty of serious misconduct and unfit to hold judicial office.”
In 2021, the JSC upheld a Judicial Conduct Tribunal ruling that Hlophe committed serious misconduct by referring a pending ruling in former president and now MK leader Jacob Zuma's arms deal corruption case to two Constitutional Court judges.
The court found that when Hlophe tried to raise the issue with Justices Chris Jafta and Beth Nkabinda separately in the spring of 2008, a year before Zuma became president, he appeared to be trying to “persuade” the two judges for political reasons.
Fourteen years later, the National Assembly approved a resolution for President Cyril Ramaphosa to remove him from the judgeship. Hlophe maintains he has done nothing wrong and has repeatedly delayed investigations into misconduct through legal challenges and subjecting the findings to legal review, but has failed.
When the ANC appointed its new representative from parliament to the commission two weeks ago, it did not oppose his nomination, arguing that there was no law or parliamentary rule prohibiting the appointment of an impeached judge.
However, Mr Curiel argued that Parliament had breached its constitutional obligations by failing to enact rules under section 55 of the Constitution which provides for oversight duties over the JSC.
He said the Supreme Court has exclusive jurisdiction over the matter as no other court has the power to decide whether Parliament has failed in its constitutional duties.
In seeking direct access to the Constitutional Court, Curiel said case law has determined that issues involving sensitive separation of powers principles must be heard in the Supreme Court.
“And where a dispute requires the Court to decide an important political question and intrudes into Parliament's domain, the dispute will likely fall within the Court's exclusive jurisdiction.”
He said former Chief Justice Sandile Ngcobo: Doctors for Life International v. Speaker of Parliament et al. In 2006, it was laid down that where Parliament has a primary duty but has not indicated how it will fulfil that duty, reviewing jurisdiction is reserved for the Supreme Court.
“This is precisely the case, it is argued. The reason Parliament supported Mr Hlophe's nomination was because until it enacted rules to prevent MPs who have been impeached by Parliament from taking office on the JSC, Parliament could not prevent Mr Hlophe from taking office on the JSC and, necessarily, until then Parliament would have to vote for Mr Hlophe (as it did).”
AfriForum said this stance not only ignores parliament's duties but also leaves it up to the courts to define parliament's duties and show how lawmakers should act.
Mr Kriel cited case law, including that arising from the litigation surrounding Mr Hlophe's disciplinary proceedings, which confirmed that the composition and operation of the JSC is a matter of constitutional importance.
“I would argue this issue is unprecedented,” he said.
“Because this is a matter of such importance to South Africa's constitutional democracy and the implications of appointing to the upcoming JSC an individual who has already been impeached and found unfit for judicial office are so significant, it is in the public interest for this court to grant access, exercise its exclusive jurisdiction and dispose of this matter as expeditiously as possible.”
As legal experts have done, AfriForum has raised the possibility that aspiring judges and those seeking promotion to higher courts may call for Hlophe to be excluded from interviews with the commission.
This could lead to delays in appointments and legal challenges to the lawfulness of the committee's procedures.
“It is not in the public interest for a judicial seat in such an important position to remain vacant for any longer than necessary.”
Many in legal circles believe the time has come for legal consideration of the issue, but point out that courts are understandably reluctant to step into legislative territory.
Curiel argued that the separation of powers is not undermined by the reasonableness inquiry because the reasonableness inquiry inherently involves “the minimum or lowest possible standard regarding the validity of an administrative decision.”
Freedom Under Law has also indicated it intends to challenge the appointment.
