National Assembly appoints impeached John Hlophe to Judicial Service Commission

The Democratic Alliance objected but the ANC accepted his nomination on the basis that no law or rule of parliament barred him from serving on the JSC

The National Assembly on Tuesday designated John Hlophe to serve on the Judicial Service Commission (JSC), five months after removing the former Western Cape judge president from the bench for gross misconduct.

The Democratic Alliance (DA) strongly objected to Hlophe’s nomination by the uMkhonto weSizwe (MK) party, but his appointment duly followed thanks to the qualified support of the ANC.

DA chief whip George Michalakis warned that it would be irrational to send a judge who was impeached to serve on the body that appoints judges, but found unequivocal support only from the African Christian Democratic Party (ACDP) and the Freedom Front Plus.

The ANC took the view that because there was nothing in law or in the rules of parliament prohibiting the appointment of an impeached judge to the JSC, it would not oppose Hlophe, now parliamentary leader of the MK party, becoming a commissioner.

ANC chief whip Mdumiseni Ntuli said the party respected the DA’s right to raise concerns about Hlophe’s nomination “for the reasons that they are advancing”. But the ANC believed that the conventions of parliament should be respected until such time that the rules or the law may be amended.

“We have agreed that in instances where the rules of parliament or the Constitution has not clearly defined a particular position, we are going to have to live on the basis of the established rules and practices of parliament,” he said.

“Our view is that notwithstanding the concern that has been raised by the DA on the Hlophe matter, we want to suggest that the house should not take a position unless it has clarified its own rules where there is a lacuna or a gap on our rules, as well as the Constitution, so that when we take a position it does not just become a political position but is a position that is supported by either the constitution or the rules of the National Assembly.”

Michalakis suggested there was a clear legal argument for not sending Hlophe to serve on the body. 

He said the law required that the National Assembly act in a reasonable and rational manner when appointing its six delegates to the JSC.

“We are strongly of the view that it is neither reasonable nor rational to elect Dr Hlophe as a representative of the National Assembly on the Judicial Service Commission.”

Michalakis said it also went against the constitutional obligation of MPs to assist and protect the judiciary to safeguard its independence, dignity and effectiveness.

He warned that candidates for the appointment to the bench, or promotion to higher courts, would probably demand that Hlophe recuse himself when they are interviewed by the JSC.

“Even if the majority today holds the view that any person who is fit and proper to be a member of parliament is fit and proper to be a member of the JSC, it must follow that a large number of applicants to be interviewed by the Judicial Services Commission going forward, will object and apply for the recusal of Dr Hlophe on the basis the finding of gross misconduct renders him unfit to serve on a body that is to determine the fitness and propriety of others.

“This poses the risk of paralysing the JSC and tying it up in endless review processes.”

It was expected that the matter would be put to the vote, but once Ntuli had made plain the ANC’s position, the DA did not call for a division. Although many in the ANC privately share the DA’s disquiet on the subject, the party was not assured that its members would heed an instruction to vote against Hlophe’s appointment.

Several parties in the new governing coalition firmly supported Hlophe’s nomination, while the Inkatha Freedom Party stayed on the fence.

United Democratic Movement leader Bantu Holomisa, the new deputy minister of defence, said given that it was parliamentary custom to support the nominations of individual parties for their members to serve on the JSC, Hlophe held “a reasonable expectation” of appointment.

Al Jama-ah and the Pan Africanist Congress also supported his appointment.

MK chief whip Sihle Ngubane said Hlophe would be an asset to the JSC, adding that the party had done the National Assembly a favour by bringing into its ranks a Cambridge law graduate.

He argued that the Constitution provided for the appointment of politicians to the commission, in part because it lent “a semblance of credibility” to judicial appointments since members of parliament represented the will of the electorate.

“Importantly, politicians are involved in the JSC so that they amplify the voice of the poor, the electorate. Therefore the legal qualification and judicial experience of members such as Dr Hlophe are a sure thing for a body such as the JSC.”

Legal observers have said that although it may not be unlawful to let an impeached judge ascend to the JSC, it was unethical. 

This was echoed by ACDP leader MP Steve Swart who told the chamber: “The legal lacunae must be addressed … It is ethics 101.”

The JSC in 2021 affirmed a finding by the Judicial Conduct Tribunal that Hlophe had committed gross misconduct by raising a pending ruling relating to former president and now MK party leader Jacob Zuma’s arms deal corruption case with two constitutional court justices. 

The tribunal found that Hlophe seemed to have been on a politically motivated “mission” to sway justices Chris Jafta and Bess Nkabinde when he tried to raise the matter with them in separate meetings in the spring of 2008, a year before Zuma became president.

Hlophe maintained that he had done nothing wrong, and repeatedly delayed the misconduct inquiry by way of legal challenges, and unsuccessfully took the findings on legal review.

The saga spanned 14 years, before he and Nkola Motata (who drove his car into a wall while drunk) in February became the first judges to be removed from the bench for misconduct in post-apartheid South Africa.

Freedom Under Law reiterated on Tuesday that it may take the matter on legal review.

“It is a travesty that someone who was found guilty of misconduct and stripped of his position as a judge is now in a position to decide on the suitability of other candidates for judicial appointment,” executive officer Judith February said.

Judges Matter said it was disappointed by the legislature’s decision to appoint Hlophe to the JSC and former communications minister Faith Muthambi, who has been criticised by the courts for ethical breaches, to the Magistrate’s Commission.

“We believe it undermines the credibility of these commissions and the integrity of the judiciary,” the watchdog NGO said.

“It is a cruel irony that aspirant judicial officers will be assessed on their ethics, integrity and fitness for judicial office by commissioners who have themselves been found guilty of misconduct.”