Freedom Under Law (FUL) has filed a legal review into the appointment of Opposition Leader John Hlophe to the Judicial Commission.
debtFUL has become the third petitioner to file a judicial review of Opposition Leader John Hlophe’s appointment to the Judicial Service Commission (JSC), asking the court to stop him from taking up his post on the same body that recommended his impeachment.
Like the Democratic Alliance (DA), Freedom Under Law also filed an urgent application in the Western Cape High Court.
Both sides argue that it is essential for the court to intervene before the JSC convenes in October to interview candidates for the Constitutional Court, the Court of Appeal and several judges within the JSC, including the presiding judge.
It was a position Hlophe held until he was sacked five months ago, making him the first judge in the democratic era to suffer this fate.
In its founding affidavit, Freedom Under Law said Hlophe was impeached for the “most serious reasons”.
“Dr Hlophe has violated the principle that no government official, lobby group, individual or even another judge may interfere or attempt to interfere with the way a judge handles cases and issues rulings,” Judith February, executive director of Freedom Under Law, wrote.
The Tribunal for Judicial Conduct found that Hlophe had breached the Constitution and the Code of Judicial Conduct by referring a pending ruling on the arms trade corruption case of former president and now Umkhonto weSizwe (MK) leader Jacob Zuma to two Constitutional Court judges.
The court said that when Mr Zuma met Justices Chris Jafta and Beth Nkabinda separately to try to raise the issue in 2008, a year before he became president, he appeared to have been politically motivated in his attempts to “persuade” them.
The JSC upheld the finding of gross misconduct. Hlophe filed a lawsuit, which was roundly dismissed by the Johannesburg High Court, paving the way for impeachment by Parliament. In February, the National Assembly voted 305-27 that the president should remove Hlophe from the bench.
A few months later, Hlophe was sworn in as an MP for Zuma's MK party and nominated as the party's leader in parliament, but was not on the candidate list for May's elections.
Mr February said that from a factual point of view, the Hollophe case was unprecedented in the world.
Freedom Under Law is asking the court to void his appointment and send the matter back to Parliament. It lists four grounds for review.
First, it said the Parliament's decision was based on a serious legal error in failing to exercise the discretionary power conferred on it by Article 178(1)(h) of the Constitution.
“In fact, the court did not seem to recognize that it had any discretion at all.”
Freedom Under Law said the error was fundamental because Congress was obliged to exercise its discretion and this alone was sufficient reason to set aside the decision.
Referring to Speaker Thoko Didiza's letter and ANC floor leader Mdumiseni Ntuli's comments, February said both clearly expressed the view that the law and parliamentary rules were flawed because they did not expressly bar impeached judges from taking office on the Supreme Court.
“This interpretation is incorrect… Parliament's 'nomination' power means that any six MPs nominated by a political party will suffice and does not mean that Parliament has to blindly accept any candidate submitted,” she said.
“FUL respectfully submits that it cannot support Parliament's interpretation of Article 178(1)(h) of the Constitution.”
Although the parliament as a group had the power to elect its representatives to the JSC, it felt it could not oppose MK's nomination of Hlophe and handed that power over to minority parties.
Freedom Under Law argued that the Constitutional Court had made it clear that those nominating individuals to be members of the JSC must take the task seriously and identify people with the appropriate qualifications.
It was therefore incorrect for Didiza to write in his July 9 letter to Freedom Under Law that there were “no other criteria” for appointing the six representatives to the committee than that they be members of Parliament and that half be opposition members.
“In the above context, it should be noted that there is no specific requirement for a Member of Parliament to be 'fit and proper',” the Chairman emphasised.
But Mr February argued that while there is no express constitutional provision that the president or the National Prosecutor General must be fit and proper, it is clear that this is implicit with a proper interpretation. The same goes for JSC members.
“A former judge who was dismissed for serious misconduct and whose continued role in the judiciary would jeopardize public confidence in the judiciary is clearly not the right person for the position,” she said.
The second ground on which Freedom Under Law argues is that Parliament’s decision is in direct conflict with Article 165(4), which requires state organs to protect the independence, impartiality, dignity and effectiveness of the judiciary.
“FUL argues that the Parliament's decision is illegal and unconstitutional as it hinders rather than supports or protects the requirements of Article 165(4).”
February said Hlophe was unfit to serve on the JSC because not only was he dismissed for gross misconduct, but his relentless attacks on the commission delayed disciplinary proceedings, taking nearly 16 years to complete.
“He is unfit to serve on the JSC as he has continually sought, without factual or legal basis, to undermine the credibility of the JSC, the fairness of the JSC's proceedings regarding the charges against him, and decisions made by the Supreme Court, higher judges and the National Assembly.”
Hlophe challenged the court's interpretation of the judicial code and characterized his impeachment as a political conspiracy, telling the media after being sworn in as an MP that his impeachment had no legal basis.
“Dr Hlophe has not atoned for his actions,” February wrote.
“He remains unrepentant and undefeated despite the adverse judgments passed against him.”
Mr. February added that his views about what is required of a judge would be wrong and therefore would be of no help to the committee in deciding whether a judicial aspirant deserved appointment, but there was an added risk that his views might be persuasive to the committee's rank-and-file members.
In the third case, Freedom Under Law argues that his appointment was irrational as Parliament did not use the power for its intended purpose: the MPs appointed to the JSC were there to add a “democratic element” to the selection process to ensure that the judiciary did not become out of touch with national sentiment or actively undermine other institutions of the state.
This objective will not be achieved with a commissioner who has a history of undermining public confidence in the process and challenging the authority of courts, senior judges and the JSC itself, February said.
Ultimately, Freedom Under Law argued that the National Assembly had taken into account irrelevant considerations, such as its tradition of respecting choices made by political parties in nominating members of the JSC.
The Supreme Court said it had made it clear that political practice and custom cannot unduly prevent Parliament from complying with constitutional provisions, in this case Article 178.
Freedom Under Law is calling on the court to vacate the ruling and leave it to Congress to reconsider.
The prosecution is seeking similar relief, citing similar grounds of review, but also seeking an emergency injunction barring Mr Flope from taking part in a series of interviews before the JSC in October.
The court argued that if it found his appointment unlawful, then his participation in the October personnel process would also be unlawful, which would make the JSC's actions in advising President Cyril Ramaphosa on who to fill the vacant position unlawful.
Freedom Under Law agrees with this but, instead of applying for an injunction, is asking the court to fast-track the case to clarify the composition of the JSC before interviews begin on October 7.
The district court proposed to hear the case simultaneously upon the prosecutor's application.
AfriForum is also challenging Hlophe's appointment but has taken its case directly to the Constitutional Court.