Disgraced judge John Hlophe. (Photo: Gallo Images / Foto24 / Bongiwe Gumede) 
The non-government organisation Freedom Under Law (FUL) says it will legally challenge impeached judge John Hlophe’s designation to the Judicial Service Commission (JSC).
In a statement on Tuesday afternoon, FUL executive officer Judith February said the organisation would challenge Hlophe’s designation as a member of the JSC “on rationality and rule of law grounds”.
Read more in Daily Maverick: Impeached John Hlophe in the JSC is a constitutional disgrace
“To have a situation where an individual who was found to have committed gross misconduct and was removed from judicial office, is now in a position to decide on the suitability of other candidates for judicial appointment is wholly inappropriate, irrational, and in our view, susceptible to legal challenge,” said February.
The newly constituted National Assembly on Tuesday carried a motion to elect Hlophe — the former Western Cape Judge President who was impeached for gross misconduct — as the designated representative for the uMkhonto Wesizwe (MK) party on the JSC.
Read in Daily Maverick: Disgraced judge John Hlophe will serve on JSC after GNU fails to come together
The ANC, DA and other Government of National Unity (GNU) parties failed to find each other on the matter of Hlophe’s election to the JSC in advance — with the ANC siding with MK and the EFF that it was permissible.
The DA’s George Michalakis argued that it was “neither reasonable nor rational” to elect Hlophe to serve on the same body that found him guilty of gross misconduct as a judge. The Freedom Front Plus and the African Christian Democratic Party (ACDP) backed the DA.
The JSC is made up of 23 members and is tasked with assessing and recommending potential judge candidates and considering complaints against judges.
Joining Hlophe as the parliamentary representatives on the JSC will be Molapi Lekganyane and Fasiha Hassan from the ANC, EFF leader Julius Malema, the DA’s Glynnis Breytenbach and Action SA’s Athol Trollip.
Hlophe was found guilty of gross misconduct by the JSC in a case dating back to 2008, when he was accused by Constitutional Court justices of attempting to influence that court’s judgment in matters involving former president Jacob Zuma.
An overwhelming majority of MPs voted to impeach him earlier this year.
“It is also hard to reconcile the contradictory position of political parties which voted for Dr Hlophe to be removed from judicial office, but now voted in favour of his appointment to the JSC,” said February.
“This was an early test for all the parties forming the GNU to take a position which would ultimately strengthen the credibility of the JSC and the rule of law. All parties who did not object to the nomination today are, by their silence, implicated in this egregious decision.
Read more in Daily Maverick: Relations & Relationships — GNU’s success may depend on Cabinet’s internal dynamics
“The Constitution requires organs of state to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. By designating an individual who has been found unfit to be a judge to the body responsible for the selection of judges, the National Assembly has fallen short of this duty.”
FUL was among a group of NGOs, including Judges Matter and the Ahmed Kathrada Foundation, which wrote to Parliament last week to express their objections to Hlophe’s potential membership of the JSC.
In a response to the NGOs’ correspondence, Speaker Thoko Didiza on Tuesday said the decision to designate Hlophe, or any other member, to the JSC rested with the National Assembly.
Conflict of interest
In a statement following Hlophe’s designation, Judges Matter’s research and advocacy officer, Mbekezeli Benjamin, said Parliament’s decision was “contrary to the spirit, purport and objects of the Constitution. It is plainly irrational in relation to the injunction by section 165(4) of the Constitution, which requires that Parliament takes measures to protect the independence and dignity of the courts.”
Hlophe’s designation to the JSC — as someone who was found guilty of gross misconduct by the same institution — raised questions about his conflict of interest in appointing other judges.
Read more in Daily Maverick: Prospect of impeached Judge John Hlophe serving on the JSC would be a travesty of justice
Attorney and coordinator of Judges Matter, Alison Tilley, told Daily Maverick that Hlophe’s appointment was not a rational exercise of power — one of the grounds on which FUL was going to challenge his designation.
“One can’t have somebody who has been impeached sitting in on and deciding on the appointment of judges,” she said.
“There’s all sorts of possibilities [with Hlophe’s designation as a member of the JSC]. Not only could the candidates ask him to recuse himself, which I think they would be entitled to, but whether the JSC as a whole would be prepared to sit under those circumstances,” said Tilley.
“It’s something the courts should not have to be dealing with. This is politics. This is something politicians should be sorting out amongst themselves, and they shouldn’t be behaving in such a way that the politics fails, and people have to approach the courts. That’s exactly this pressure on the judiciary that has created this atmosphere in which Dr Hlophe is seen as a victim, rather than as a disgraced judicial officer.” DM