John Hollofe attending an MK Party press conference at Capital Empire in Sandhurst, Johannesburg (Photo: Luba Lesor/Gallo Images via Getty Images)
The Western Cape High Court heard on Thursday that the National Assembly unlawfully delegated responsibility for appointing Judicial System Commission (JSC) members to the Umkhonto weSizwe (MK) party by approving the appointment of disgraced judge John Hlophe as a member of the Judicial System Commission.
Freedom Under Law (FUL) lawyer Wim Trengove SC argued that the Constitution gives members of parliament not just the power but also the responsibility to appoint representatives to the JSC.
This meant that at the very least, a “careful selection” had to be made, which included pausing to consider whether candidates were suitable for appointment.
“At a minimum, discretion must be exercised and consideration must be given to the questions: 'Is this candidate suitable for appointment? Is this candidate competent to serve? Is this candidate someone whose participation in judicial appointments will instill public confidence in the method of judicial appointments?'”
If the power of designation is the power to make choices, he continued, then those choices must be rational, not random.
Trengoove said Parliament did not have a specific procedure for appointing members of the JSC, so they followed the same approach as when constituting the portfolio committee.
“I don't blame them, but it was a big mistake,” he added.
According to documents filed by Speaker of Parliament Thoko Didiza, Parliament has made it a practice to approve political party nominees to represent Parliament in committees.
Trenghove said the problem was that the JSC was not a parliamentary committee and the MPs sitting on it did not represent different political parties, as in a portfolio committee, but rather represented the National Assembly and, indirectly, the people.
Choosing to abide by the court's decision, Didiza reiterated in his submission that although Hlophe's appointment presents a unique situation, there is no law prohibiting an impeached judge from serving on the commission, so the decision was made not to disturb tradition and to honour the mandate given to the MK party by voters.
Several parties, including the Democratic Alliance (DA), had opposed Hlophe's appointment but the ANC did not oppose it, believing parliament was bound by the unspoken rules cited by the speaker.
Trengboove said this was tantamount to handing over the power given to parliament in the constitution to appoint JSC members to MK, the party Hlophe joined four months after being impeached for gross misconduct.
Justice Selby Bakwa asked whether this suggested that Parliament had acted unlawfully in the past when appointing other members to the JSC in a similar manner, although Mr Horofe's appointment was clearly an unusual scenario.
“So when people follow precedent, as we do in law, can we say that it is wrongful, illegal, improper or unreasonable conduct?”
While Trengive said he could not speak about the past, the position paper submitted by the Speaker made it clear that in this case, Parliament had followed the same procedure as when constituting a committee.
“If we assume that they have probably always done so, then they have always acted illegally. An illegal exercise of public power does not become lawful just because it is done multiple times,” he added.
“It may be understandable to humans, but it doesn't make it legal.”
The first requirement for the exercise of public power is that it must be exercised by someone who holds that power.
“You can't leave it to somebody else. You can't shift the responsibility.”
Trenghove said this was exactly what happened because lawmakers simply approved the MK Party nominations on the assumption that they had no discretion to make any other decision.
“It doesn't matter if they did it of course. They may have done it. It doesn't matter if they may have done it in the past. They may have done it. But it's clearly illegal.”
The second requirement was that public power be exercised in the public interest.
Here, Trengive quoted Constitutional Court judge Mbuyiseli Madlanga. Helen Suzman Foundation v. Legal Services Commission“Undoubtedly, the JSC’s function of recommending appointments of senior judicial officers is crucial.
“Bearing in mind the importance of this function, I do not think it is unreasonable to expect that those charged with the responsibility of nominating, designating or selecting individuals to serve on the JSC will take that responsibility seriously and identify people who are appropriately qualified for the position.”
Mr Trengove said the NA had apparently failed to do so because it was on record as not considering it was in a position to question Mr Hollophe's suitability for the position.
“Even before we get to rationality, the decision was fatally flawed because the state agencies with the power to designate made no choice. They made no choice at all. They approved the designation.”
Judge Trengive rejected the defendants' argument that the parliamentary decision was made by a legislative body and therefore could not be reviewed as an administrative action.
“No, it's an administrative decision given to the legislature. But the legislature doesn't make the law when it appoints people.”
Even if the court rejected the argument, the decision would remain open to review in terms of the principle of legality, he said.
Advocate Max du Plessis, also representing FUL, said it was common knowledge that all public powers must be exercised rationally. The defence's argument that the Constitution does not expressly require Parliament to consider the eligibility of candidates nominated to the JSC therefore did not hold water.
This is because the committee's mandate is to review candidates for judicial appointment for suitability and to protect the integrity of the court.
“The JSC process should contribute to the moral authority of the judiciary and enhance public confidence in judicial appointments.”
Because Hlophe was found to be grossly unfit to be a judge, “his position before the JSC means that the JSC itself cannot achieve its objective of appointing qualified candidates”.
Hlophe and his party have argued that his long career as a senior judge makes him well suited to the JSC. In February, the former chief judge of the Western Cape division became the first judge in the post-apartheid era to be impeached.
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.
Hlophe maintains he has done nothing wrong and will continue to seek to have the JSC ruling and impeachment overturned.
Lawyer Jamie Ismail SC, representing the Democratic Alliance, sought an urgent injunction preventing Mr Hollofe from taking part when the JSC plans to interview candidates for vacant judgeships in October, arguing that failing to do so would taint those appointments.
The DA and the third applicant, Corruption Watch, are seeking the same relief as FUL in Part B of their application – that his appointment be set aside and the matter be remanded back to Parliament for a new decision.
MK party's lawyer Dali Mpofu SC strongly opposed the three applications being heard simultaneously. He said it was “unreasonable” for FUL's application to be heard before the application for interim relief.