Parliament to abide by high court order preventing Hlophe from sitting on JSC

Parliament will abide by a high court order setting aside its decision to designate impeached former Western Cape Judge President John Hlophe as a member of the Judicial Service Commission (JSC).

Parliamentary spokesperson Moloto Mothapo said the Western Cape Division of the High Court had ruled on Monday that the decision by Parliament had been “unconstitutional, invalid and was therefore reviewed and set aside”.

The party to which Hlophe belongs, former president Jacob Zuma’s uMkhonto Wesizwe (MK), was also in the spotlight this week when it announced that its secretary-general, Floyd Shivambu, had been demoted and would be sent back to Parliament as an ordinary MP.

Musical chairs

There he will sit in the opposition benches alongside Hlophe, who is the party’s deputy president. In the same opposition catchment in the National Assembly will be EFF leader Julius Malema, Shivambu’s former comrade whom he betrayed to join MK.

Hlophe has announced that he will appeal against the order.

MK spokesperson Nhlamulo Ndhlela said the party was “determined to expose the fundamental injustices embedded in the current Constitution and will therefore appeal this shocking judgment in an effort to educate the public about the urgent need for parliamentary sovereignty blended with indigenous African law based on ubuntu, collective ownership of economic resources and the will of the people where the law can no longer be manipulated to justify hatred for certain targeted individuals.”

Interpretive guidance

Court applications were brought by the Democratic Alliance, Freedom Under Law and Corruption Watch after the National Assembly on 9 July 2024 designated Hlophe to serve as one of its representatives on the JSC in terms of section 178 of the Constitution.

This week, Parliament noted “the interpretative guidance offered by the court” which offered its concern about “the rationality of designating a member who was previously found guilty of gross misconduct and removed from judicial office, and who has continued to demonstrate conduct incompatible with Parliament’s obligation to protect and ensure the independence and integrity of the judiciary”.

Mothapo said as the judgment bore implications for Parliament’s internal arrangements, procedures and processes relating to the designation of representatives to the JSC and other constitutional bodies, it would “take all necessary steps to ensure alignment with the court’s findings”.

This included instituting “the appropriate processes to ensure that future designations comply with the constitutional principles outlined in the judgment”.

The court ordered Hlophe and MK to pay the costs of the application.

Parliament violated Constitution

It found that Parliament had violated the Constitution by designating Hlophe — an impeached judge who had fallen foul of his oath of office — to a seat on the JSC.

This would have compromised and undermined the integrity and legitimacy of the JSC and any process in which Hlophe might be involved in the appointment of future judges, the full bench set out in a concurring judgment.

“The National Assembly did not consider the relevant fact that Dr Hlophe had been impeached for gross misconduct. Instead, it relied on irrelevant considerations, such as established parliamentary practices and conventions, which cannot override constitutional requirements,” read the order. DM