It was granted pending the hearing of three applications for review of the decision by MPs to appoint the former judge to the same commission that urged his impeachment
The Western Cape high court on Friday granted an interim interdict barring John Hlophe, the disgraced former judge president in the division and the present parliamentary leader of the uMkhonto weSizwe party, from participating in sittings of the Judicial Service Commission (JSC).
The order was granted pending the court’s decision on three applications asking that the National Assembly’s decision in July to appoint to the commission be set aside as irrational and unlawful in light of his impeachment for gross misconduct.
Hlophe was removed from the bench in March after a disciplinary process spanning almost 16 years, sparked by his attempts to sway constitutional court judges in favour of Jacob Zuma in cases related to the arms deal corruption charges against the former president, who now leads the MK party.
The immediate effect of Friday’s decision is that Hlophe will not participate in JSC interviews early next month where the commission will consider candidates for appointment to the country’s supreme court of appeal and several high court divisions, including the Western Cape.
A full bench agreed with the applicants in the case that there was a risk that Hlophe’s presence could compromise the integrity of the interviews, and found that on the face of it, they had made out a strong case to succeed in their review of the decision to appoint him to the JSC.
The Democratic Alliance, Freedom Under Law (FUL) and Corruption Watch all argued that the National Assembly failed to exercise its discretion in terms of section 178(1)(h) of the Constitution when it appointed Hlophe to the same body that recommended his impeachment.
FUL argued that it was apparent, from the stance adopted by both the speaker and the ANC chief whip in parliament, that the chamber failed to recognise that it had any discretion at all and simply rubber-stamped the MK party’s nomination of Hlophe to serve on the commission mandated to appoint the country’s judges.
And all three applicants argued that the appointment was incompatible with the JSC’s functions as set out in section 165(4) of the Constitution.
The court agreed on both counts.
It said the Hansard record of proceedings on 9 July made it clear that the National Assembly had simply followed a convention that it will appoint whoever a particular political party nominates to serve on the JSC.
But this convention of rubber-stamping nominations could not apply to the commission in the same manner it did representation on parliament’s portfolio committees.
“It is irrelevant in this case as the JSC is not a parliamentary committee, but a body established by the Constitution consisting of members representing different interest groups.”
The court said case law gave reason to the applicants’ argument that all organs of state – including the legislature – were enjoined by the constitution to assist the courts to protect their independence, impartiality, dignity and effectiveness.
“The appointment of Dr Hlophe to the JSC will inevitably undermine the independence, dignity and effectiveness of our courts,” it concluded.
The court was scathing of Hlophe’s submission, and that of his party, that his removal from the bench did not prevent the assembly from designating him to serve on the JSC because impeachment carried no collateral consequence.
Both had argued the applicants conflated his status as impeached judge with his present position as MP.
Impeachment, as Hlophe put it, “has nothing to do with eligibility for the NA” and does not carry any more punishment than the removal”.
But the court said this cannot hold because the JSC was not a portfolio committee but an entity established by the Constitution.
“This startling submission, based on the evidence of Dr Hlophe quoted above, is untenable.”
Unlike the other two applicants, FUL did not seek interim relief. It had pleaded that the review application was ripe for hearing and asked for a final order.
The court said FUL was correct in arguing that there was nothing to be added to the record of proceedings of the National Assembly’s sitting where Hlophe’s nomination was endorsed.
But after much consideration, it decided to postpone FUL’s application to be heard simultaneously with that of Part B of the other two applications or eventually in the constitutional court, as AfriForum has asked it for direct access to challenge the National Assembly’s decision. The three applicants in the Western Cape have asked to be joined as parties in that litigation.
However, the court said, this did not stop it from considering FUL’s submissions in deciding whether its fellow applicants had established a prima facie right, which is the first requirement for interim relief.
It added that it was satisfied that “at least a very strong prima facie case has been made out to be successful in the review applications contained in part B” of the DA and Corruption Watch’s cases.
In weighing the balance of convenience for interim relief, the court said: “this is one of the clearest of cases to grant a restraining order”.
Hlophe will not be prevented from carrying out his work as an MP.
“He may miss one or perhaps two sittings of the JSC prior to the hearing of part B of the applications.”
On the other hand, there was the risk of compromising the legitimacy of the upcoming sittings of the JSC. This, the court said, could not be undone later by review in due course.
The matter was heard by Gauteng high court judges Selby Baqwa and Colleen Collis and Free State high court judge Johannes Daffue.