The negotiations for a government of national unity (GNU) were proclaimed to be based on the premise that all parties which joined were committed to the Constitution in general and the rule of law in particular. By the time the participants were announced, there was some deviation — notably the Patriotic Alliance appeared to reject constitutional protection for migrants and wanted far more power for traditional leaders.
However, uMkhonto Wesizwe (MK), which would shred the Constitution, and the Economic Freedom Fighters (EFF), which would advocate significant changes thereto, are not part of the GNU.
One would have thought that the rest of the GNU membership would regard the judiciary as a key constitutional institution and seek to ensure that the body that selects judges and holds them accountable, the Judicial Service Commission (JSC), would be comprised of members deeply committed to constitutional democracy.
How naïve can one be!
The ANC caucus obviously has a different view of constitutional integrity in that its members joined forces with MK to vote in favour of Dr John Hlophe becoming a member of the JSC. Last year, the National Assembly, including the ANC, voted to impeach Hlophe for gross judicial misconduct.
Agreed, he is lawfully a member of the National Assembly (although that is itself questionable), but on what rational basis can an impeached judge be deemed to be an appropriate person to determine whether applicants for judicial office should be elevated to the Bench?
Can any question put to an applicant about judicial temperament or commitment to judicial ethics by Hlophe be taken seriously?
Is it at all rational that he will be among JSC members who will decide who becomes the new Judge President of the Western Cape High Court, in circumstances where his animus for his ignominious departure should be apparent to everyone?
If not, then see his recent SABC interview:
To the advocates of his appointment to the JSC who proclaim about Hlophe and the interests of the poor, they should read the case of the Joe Slovo informal settlement where the then Judge President Hlophe ordered the eviction of 20,000 desperate people.
How will any applicant for judicial office take seriously any question from Hlophe about property and protection of the poor? The point is, if you defend the appointment of Hlophe as a JSC member, please do not insult the intelligence of South Africans by claiming that he has always been a steadfast advocate of radical social and economic change.
The JSC has been legitimately criticised for some time now. Deserving candidates have been treated with gross discourtesy and questionable appointments have been made. The upshot is that the JSC has represented a major deterrent to many of the most able lawyers in South Africa applying for appointment or promotion.
To those who truly care about the health of the judiciary, the reconstitution of the JSC has been seen as an imperative. Reduce the number of politicians, appoint a member or two from civil society and ensure that the body is truly fit for purpose.
Instead, it is now deemed acceptable to include a disgraced judge in its ranks — at the very time when, judging by the last round of hearings, absent Julius Malema, the hearings and appointments seemed to have turned a corner.
The smart money will now be on “back to the populist hearings” of the past years in line with the Mpofu/Malema tag team. A huge burden will rest on the new Chief Justice, Mandisa Maya, as chair of the JSC to ensure that hearings continue to be directed to probe the quality of applicants as opposed to grandstanding and posturing by certain JSC commissioners.
That the majority of MPs, including those from the ANC, whose president deserves great credit for piloting through a GNU which proclaims fidelity to the Constitution, has been so cavalier regarding the importance of the JSC and hence the quality of the judiciary as to support for JSC office a man that Parliament itself less than a year ago considered unfit to continue to be a judge, is a constitutional disgrace.
It bodes poorly for the commitment of the majority of MPs to promote and defend the very Constitution they swore to uphold.
I mentioned earlier that there is a question of the legality of Hlophe’s membership of the National Assembly. He was, after all, not included in the list of candidates submitted by MK pursuant to section 27 of the Electoral Act. How he was then included needs to be investigated to determine whether his inclusion was caused by a casual vacancy (item 17 of schedule 1A of the Electoral Act).
If not, then item 19 of schedule 1A applies, in which case Hlophe could only be added 12 months after the submission of the list and hence he cannot at this stage be an MP.
It is clear that this total disregard for the integrity of the Constitution by the majority of the National Assembly will be challenged in court. At the same time, these parties may want to explore whether Hlophe can at this stage be a member of Parliament. Given the standard quality of legal advice given to MK, litigation may mean that the JSC can function without a constitutional denier. DM