Hlophe joins JSC few months after his impeachment

Impeached judge John Hlophe, now MK Party (MKP) parliamentary leader, has been elected to the Judicial Service Commission (JSC) – but not without opposition from the DA, FF Plus and ACDP. 

Hlophe is part of a six-member team selected from five political parties that will serve on the JSC, the same body that made adverse findings of gross misconduct against him which led to his impeachment. 

His party argued that by virtue of being an MP, Hlophe qualifies to sit on the JSC. 

“Members who qualify to be in the JSC are already MPs and therefore bound by their oath of office. The constitution, in its wisdom, does not regulate the qualification of members to sit on the JSC,” the MKP’s Sihle Ngubane said.

Ngubane said politicians carry the mandate of the electorate and could not be excluded in structures such as the JSC, arguing it would muzzle the voice of the electorate.

“Privileges of the MKP according to its votes are constitutionally protected. The attempt to erode the will of the people by dictating to the MKP which of its preferred candidates are to be designated to the JSC is constitutionally repulsive,” Ngubane said.

Hlophe was sworn in as an MP in ex-president Jacob Zuma's party four months after he was impeached.

The DA argued loss of status as a judge should disqualify Hlophe. The party said it was concerned Hlophe’s inclusion could affect the work of the JSC. 

“Even if the majority today holds the view that anyone who is fit and proper to be an MP 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 JSC will object and apply for the recusal of Hlophe on the basis that the finding of gross misconduct renders him unfit to serve on a body that is to determine the fitness of others. This poses the risk of paralysis on the JSC,” the DA said. 

The JSC is the body that selects candidates for appointment as judges. It also investigates complaints about judicial officers and advises government on matters relating to the judiciary or the administration of justice.

The MKP’s biggest ally in the National Assembly, the EFF, however, maintained that “as a matter of principle, anyone who is eligible to become an MP” can be delegated to whatever responsibility all MPs are eligible for. 

The MKP's nomination of Hlophe also found support from the ANC, UDM, ATM and Al Jama-ah. 

The JSC is composed of the ANC’s Soviet Lekganyane and Fasiha Hassan, the DA’s Glynnis Breytenbach, Hlophe, the EFF’s Julius Malema and ActionSA’s Athol Trollip. Members elected to the JSC from the National Council of Provinces include the ANC's Refilwe Mtsweni-Thipane, Kenny Mmoiemang, Mwelo Nonkonyana and the DA's Nicholas Gotsell. 

Meanwhile, civil society organisations have condemned the decision  to elect Hlophe.

Judges Matter research and advocacy officer Mbekezeli Benjamin said the decision was contrary to the spirit, purport and objects of the constitution.

“It is plainly irrational in relation to the injunction by section 165(4) of the constitution, which requires that parliament takes measures to protect the independence and dignity of the courts,” he 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 themselves have been found guilty of misconduct. Judges Matter reiterates our call for a written code of conduct for all commissioners, with a mechanism to recall those commissioners who do not uphold the terms of the code.” 

Freedom Under Law executive director Judith February said it was a “travesty” that someone who was found guilty of gross misconduct and stripped of his position as a judge was now in a position to decide on the suitability of other candidates for judicial appointment.

“It seems entirely irrational. It is also deeply contradictory that the ANC, which voted for the impeachment of Hlophe, has today voted in favour of his appointment to the JSC. The consequences of this for the JSC as an already hobbled institution will be significant, which is why this appointment may well be open to legal challenge.”

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