The decision on whether Dr John Hlophe will be designated to the Judicial Service Commission (JSC) may be heading for a legal showdown after six legal NGOs urged the Speaker of Parliament to not appoint him, citing that it would be inappropriate for him to serve on the body that found him unsuitable for judicial office.
The draft motion on the designation of MPs to serve on the JSC contains the name of former Western Cape judge president Hlophe, who became the first judge to be impeached in the democratic dispensation earlier this year.
Hlophe, the leader of the uMkhonto weSizwe Party (MKP) in Parliament, has been nominated by his party to serve on the JSC.
The matter of the consideration of the designation of the MPs to serve on the JSC was meant to have taken place on Tuesday, but it was withdrawn from the National Assembly’s agenda – the MKP has also raised the issue of the withdrawal, saying it was not consulted.
The NGOs in their letter to Speaker Thoko Didiza said Hlophe should be excluded from the JSC.
The Council for the Advancement of the SA Constitution (Casac), Freedom Under Law, Judges Matter, The Helen Suzman Foundation, Defend Our Democracy and the Ahmed Kathrada Foundation said it would be inappropriate for Hlophe to serve on the body that found him unsuitable for judicial office.
In the letter, the NGOs said that they were deeply concerned that the Order Paper of the National Assembly for July 2 included Hlophe to be designated as a commissioner of the JSC.
“We understand that Tuesday’s JSC motion was withdrawn but our concerns remain. It is well known that Dr Hlophe was removed from his previous office as a judge for gross misconduct, having been found to have attempted to influence judges of the Constitutional Court to decide a politically sensitive case relating to former president and now member of the MK Party, Mr JG Zuma.”
The letter added that the finding of gross misconduct was made by the JSC itself.
“It was confirmed by the courts, which dismissed Dr Hlophe’s claims that the JSC had acted ultra vires, had acted unconstitutionally, and that it lacked impartiality.”
MKP MP Sihle Ngubane said the NGOs’ complaints were misplaced. “Dr Hlophe was sworn in as a member of Parliament and, by virtue of the number of seats we secured, we have the right to appoint whoever we feel fit to appoint to the JSC and the Magistrates Commission.”
Ngubane said Hlophe has the qualifications and knowledge to serve on the JSC.
“Furthermore, we don’t see a problem in submitting his name. He has never committed a crime and has never been to jail.”
Dan Mafora, a senior researcher at Casac, said Hlophe was removed from office by the National Assembly after being found guilty of gross misconduct by the JSC.
“It is inherently inappropriate for him to serve on the body that found him unsuitable for judicial office and to have input on which candidates should be appointed to judicial office.”
Mafora said they wrote to the Speaker to register their concerns and they expect her to bring the letter to the attention of the National Assembly.
“They must ultimately decide whether or not to include him on the list of representatives.”
Legal expert Mpumelelo Zikalala said that legally there is not much the Speaker can do regarding the letter the NGOs have written.
“The Speaker is the gateway to their concerns but, speaking frankly, it is the political party that can nominate their member to sit on the JSC. For the NGOs to properly challenge this, they will have to go to a court and get a ruling that it is inappropriate for Dr Hlophe to serve in the JSC due to him being impeached as a judge.”
Zikalala said one aspect that could be considered during litigation is that Hlophe's name was not on the original list of candidates that was submitted.
“This is something that could be taken to court as one of their concerns but the Speaker won’t legally be able to do anything to stop his appointment.”
The Mercury