Court stops Hlophe and MK party at the centre of chaos, again — same as it ever was

One just cannot keep John Hlophe out of the news.  

He was the first judge in the democratic era to be impeached. In the blink of an eye, he became the leader of the opposition in the National Assembly, having been appointed by Jacob Zuma as the leader of the MK parliamentary caucus. He then was appointed by the National Assembly to be a member of the Judicial Service Commission (JSC), followed by legal challenges to this appointment.

Three separate applications by the DA, Freedom Under Law (FUL) and Corruption Watch seeking to prevent Hlophe from assuming membership of the JSC were heard together and decided by the Western Cape High Court on Friday.

While the DA and Corruption Watch sought interim relief pending a final decision as to the legality of Hlophe’s appointment, FUL sought an order that the decision to designate Hlophe as a JSC member be declared unconstitutional and invalid.

These applications were strenuously opposed by MK and Hlophe as well as the African Transformation Movement. Much of this opposition was based on tendentious arguments devoid of any justifiable legal authority; in particular, the attempt to rewrite the established law relating to the four requirements needed to obtain interim relief. 

These were correctly rejected by the court, which proceeded to deal with the key question: as there is no “fit and proper requirement” to be an MP and as any MP can thus be eligible to be a parliamentary representative on the JSC, are there legal grounds to grant even interim relief as sought by the applicants?

The court set out its premise thus: 

“We are satisfied that the NA’s decision to designate six of its members to the JSC, including Dr Hlophe, amounts to administrative action under Paja [Promotion of Administrative Justice Act]. It is an organ of state, either exercising a power in terms of the Constitution, or exercising a power or performing a public function in terms of any legislation. In exercising such power, a decision was taken which adversely affects the constitutional rights of South African citizens and has the potential to affect the rights of future applicants applying for judicial appointment.”

“The Speaker correctly conceded that the NA was not obliged to ‘rubberstamp JSC nominations’. Notwithstanding this, the Hansard shows that members of Parliament misconstrued the NA’s powers, accepting that they did not have the power to vote against MK’s nomination of Dr Hlophe and therefore did not exercise any discretionary power. The Chief Whip of the ANC was the last speaker to speak before voting took place. He made it clear that the members of Parliament will have to ‘stay with the current convention and the rules of the National Assembly’.”

“We are satisfied, in evaluating the balance of convenience, that this is one of the clearest of cases to grant a restraining order and that it is also constitutionally appropriate to grant the required interim interdicts. In granting same, Dr Hlophe will not be prevented to carry out his obligations as MP. He may miss one or perhaps two sittings of the JSC prior to the hearing of Part B of the applications. In granting same, the JSC will function in his absence, but if required, the NA may always designate another MP, nominated by the opposition parties to take his place.”