Judgment against Hlophe is an important step to protect the integrity of SA's legal system

Daily Maverick

3 days ago

You simply cannot keep Dr John Hlophe out of the news. This time he is at the receiving end of a judgment of a full bench of the Western Cape Division of the High Court which upheld applications by the Democratic Alliance, Freedom Under Law and Corruption Watch that the National Assembly had incorrectly appointed Hlophe as one of the six members of Parliament to serve on the Judicial Service Commission (JSC) in terms of section 178 (1) (h) of the Constitution.
The judgment was penned by Judge Nobulawo Mbhele from the Free State, and judges Annali Basson and TP Mudau from the Gauteng Division of the High Court, all of whom were designated to hear this case given Hlophe's previous position as Judge President of the Western Cape Division of the High Court.
The reader is reminded that after a 16-year protracted legal process costing the taxpayer approximately R10-million, the President removed Hlophe from office as a judge in terms of section 177 of the Constitution. The question, therefore, given his impeachment as a judge, arose as to whether the National Assembly (NA) could legally designate Hlophe as a member of the JSC.
The first question of importance was whether the dispute was moot, as Hlophe had resigned from the JSC before this dispute was heard by the court. The court, however, held that the dispute remained live because 'any further designation process by the NA must take place with this court's guidance on whether the NA had a discretion to consider the fitness of the nominee for designation to the JSC in terms of s 178 (1) (h) of the Constitution' and whether it had acted lawfully when it designated Hlophe for appointment to the JSC.
Hlophe had raised the argument, supported by the MK and EFF parties, that he was eminently qualified to serve on the JSC because he has a doctorate in law and had served as a judge and because the Constitution had not provided specific qualifications or criteria for a person designated to the JSC.
The court accepted that section 178 (1) (h) of the Constitution does not specifically constrain the power of the National Assembly to designate a member to the JSC, other than to require that half of the designated members must be from opposition parties. However, that on its own did not suffice to give definitive content to the appointment process.
As the court pointed out, the National Assembly must act rationally, meaning that its action must be rationally connected to the purpose for which a power is exercised. Further, section 165 (4) of the Constitution requires that the National Assembly must assist and protect the courts to ensure their independence and impartiality, dignity, accessibility and effectiveness.
The judgment noted that public confidence in the judiciary's composition and its role in the administration of justice is vital. While the test of 'fit and proper' was not expressly included for appointing someone to the JSC, the court referred to a judgment by the Constitutional Court, Helen Suzman Foundation v the Judicial Service Commission (2018).
In that judgment, the Constitutional Court placed considerable importance on ensuring that those entrusted with the responsibility of nominating and designating lawyers for membership of the judiciary must be suitably qualified to do so.
The court warned that a rule that threatened the ability to appoint the best candidates for the judiciary 'would have serious consequences for the judiciary and consequently our constitutional democracy as a whole'.
To have an impeached judge as a member of the JSC effectively means that the National Assembly had appointed someone who might have been formally eligible, but 'was not substantially suited for appointment to the JSC'.
Improper exercise
In appointing Hlophe to the JSC, the Western Cape Division of the High Court said, the National Assembly was 'required to consider whether [he was] suitable for appointment'. The NA did not exercise such discretion, and indeed mistakenly laboured under the impression that it did not even have such discretion. As a result, the designation of Hlophe without any proper consideration of his suitability was an improper exercise of a discretion possessed by the National Assembly to ensure that a designee to the JSC was 'fit and proper for the purpose of nominating judges'.
What is also significant was the manner in which the full bench treated the reaction of Hlophe and his MK party to a previous order in which a full bench had granted an interim interdict restraining Hlophe from participating as a member of the JSC. The MK party had reacted by referring to the 'incompetent, irrational, absurd and blatantly political judgment of the Western Cape High Court, which is regrettable but not surprising'. Neither the MK party leader, Jacob Zuma, nor Hlophe, nor the MK party had publicly distanced themselves from the scandalising of the court.
Accordingly, having found that the presence of an impeached judge prejudiced the JSC's ability to discharge its constitutional function, the full bench held that derogatory statements Hlophe made about the retired judge Azhar Cachalia, representing Freedom Under Law, justified a punitive cost order. Both Hlophe and the MK party were ordered to pay the applicants' costs on an attorney and client scale.
The judgment is of extreme importance. It asserts the centrality of the JSC to the integrity and legitimacy of the judiciary and the need to ensure that members of the JSC are suitably qualified for purpose.
The National Assembly is not there to act as a rubber stamp confirming a political party's wish. That an impeached judge could be held up as a person who could sit on the JSC and contribute to the appointment of judges only has to be stated to confirm the irrationality of the National Assembly's initial decision.
The judgment also represents an important step by the judiciary to protect the integrity of the legal system against the kind of flagrant abuse which has characterised this sad Hlophe saga.
Is it too much to hope that in the future, courts will protect the integrity and reputation of the judicial institution by ordering punitive costs when litigants or their legal representatives engage in flagrant contempt for the judiciary and its process? DM