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.”
Turning to the critical question of whether the DA and Corruption Watch had successfully proven a prima facie right, it being the first requirement for interim relief, the court said:
“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’.”
The court noted regarding the further requirement as to whether irreparable harm could be caused if an interim order was not granted, that Hlophe still sought to litigate against the JSC in respect of his impeachment; hardly the kind of conduct that suggests that he will suffer more harm by a temporary stay of being part of the JSC then the JSC being foisted with a hostile litigant as a member thereof.
To the question of the balance of convenience if the order was granted or refused, the court said:
“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.”
That the order granting interim relief preventing Hlophe from taking his place on the JSC when it conducts hearings in October was bad news for the impeached judge is an immediate consequence; that the court, albeit refusing FUL’s application for final relief, found that it had a powerful case for final relief is arguably even worse news for the newly minted politician.
More disturbing is the reaction from MK, which claimed that the decision was a “lynching” by an “incompetent, irrational absurd and blatantly political judgment”.
Let us leave aside the political nature of the arguments put up by the legal representatives of the respective respondents. The judgment represents a stock standard application of the requirements for an interim interdict.
Even if the court erred in respect of basing its judgment on an evaluation of administrative action, the principle of legality still applies to this case.
In essence, the judgment is based on the failure of the National Assembly to consider the nature of an appointment to the JSC and in this case the appointment of an ex-judge who had been guilty of gross judicial misconduct which justified impeachment.
On the lower level of the requirement of interim relief, it is both justifiable and hence legal to conclude that a person guilty of gross judicial misconduct has no place on a body enjoined to appoint and, if necessary, discipline judges. Viewed in this light, the MK statement is in blatant contempt of court and should be dealt with accordingly. DM