Former Western Cape Chief Justice and current Umkhonto Wesizwe Party leader John Hlophe attended the swearing-in ceremony for MK Party members at the Good Hope Chamber of Commerce in Cape Town on June 25, 2024. (Photo by Brenton Geach/Gallo Images via Getty Images)
The Western Cape High Court on Friday ordered John Hlophe, the department's disgraced former chief judge and current parliamentary leader of the Umkhonto Wesizwe party, to attend a Judiciary Committee (JSC) meeting. granted a preliminary injunction prohibiting the
The order was granted pending the court's decision on three applications requesting that the July decision to appoint members of the National Assembly be set aside as unreasonable and illegal in view of his impeachment for gross misconduct. Ta.
Mr Hlophe was arrested for about 16 years after he tried to sway Constitutional Court judges in favor of Jacob Zuma in a case related to arms-dealing corruption charges against the former president, who now heads MK. He was removed from court in March after a year-long disciplinary process. party.
The immediate effect of Friday's decision is that Mr Hlophe will not take part in interviews early next month at the JSC, which considers candidates for positions in the country's Supreme Court of Appeal and several high courts, including the Western Cape.
The full court agreed with the applicants that Mr Hlophe's presence risked compromising the integrity of the interview and that he had ostensibly made a strong case for a successful review of the decision. It turns out. Appoint him to JSC.
The Democratic Alliance, Freedom Under Law (FUL) and corruption watchdogs all argue that Parliament had discretionary powers in terms of Article 178(1)(h) of the Constitution when it appointed Hlophe to the same body that recommended his impeachment. He claimed that he could not exercise it. .
The FUL said that the positions taken by both the speaker and the ANC leader in parliament make it clear that parliament has no discretion at all and merely rubber-stamps the nomination of MK's Mr Hlofe as a member. insisted. The commission mandated the appointment of judges from that country.
All three applicants argued that this appointment was incompatible with the functions of the JSC as stipulated in Article 165, Section 4 of the Constitution.
The court agreed on both counts.
The paper said Hansard's July 9 minutes make clear that Parliament is simply following the practice of appointing people nominated by a particular political party to serve on the JSC.
However, this practice of rubber-stamping nominations could not be applied to committees in the same way as delegates to parliamentary portfolio committees.
“The JSC is not a parliamentary committee, but a constitutionally established body with members representing various interest groups, so it is irrelevant in this case.”
The applicant's argument is that all organs of state, including the legislature, are required by the Constitution to assist the court in protecting its independence, impartiality, dignity and effectiveness. He said case law provides a reason.
“The appointment of Dr Hlophe to the JSC will necessarily undermine the independence, dignity and effectiveness of our courts,” it concluded.
The court scathingly criticized Mr. Hlofe and his party's submission, saying that since impeachment has no collateral consequences, it does not prevent Parliament from appointing him to the JSC.
Both argued that the applicants were confusing his status as an impeached judge with his current status as a member of Congress.
As Hlophe said, impeachment “has nothing to do with NA qualifications” and carries no greater punishment than removal from office.
However, the court said this could not hold because the JSC is not a portfolio committee but a constitutionally established body.
“This surprising submission, based on Dr Hlophe's evidence quoted above, cannot be supported.”
Unlike the other two applicants, FUL did not seek interim relief. It argued that the review application was ripe for hearing and sought a final order.
The court said FUL was right to argue that there was nothing to add to the parliamentary minutes in which Hlophe's nomination was approved.
However, after AfriForum asked for direct access to FUL to challenge the National Assembly's decision, after much consideration, FUL's application should be heard at the same time as the hearing of Part B of the other two applications, or ultimately The decision was made to postpone the hearing at the Constitutional Court. Three applicants from the Western Cape are seeking to be joined as parties to the case.
However, the court noted that this does not preclude other applicants from considering FUL's submissions in determining whether they have established a prima facie right, which is the first requirement for interim relief. said.
It added that it was satisfied that the Crown Prosecution Service and the Corruption Watch's case “provided at least a very strong prima facie case that the review application contained in Part B was successful”.
Considering the balance of convenience for interim relief, the court stated that “this is one of the most obvious cases in which to grant a restraining order.''
Mr. Hlophe will not be prevented from carrying out his duties as a member of parliament.
“He may miss one or two JSC meetings before the hearing of Part B of his application.”
On the other hand, there was a risk that the legitimacy of future JSC meetings would be undermined. The court said this could not be reversed later by proper review.
The matter was heard by Justices Selby Bakwa and Colleen Collis of the Gauteng High Court and Justice Johannes Duffu of the Free State High Court.