The matter dealing with impeached Judge, who is now the Parliamentary leader of uMkhonto weSizwe (MK), Dr John Hlophe being barred from sitting on the Judicial Service Commission, is back in the Western Cape High Court on Tuesday.
This time around, a final order on the matter is being sought by the applicants. Last year, an interim order was granted by this court, barring him from sitting on the JSC, the body responsible for interviewing candidates for judicial appointments.
Before being impeached, Hlophe, who is now a Member of Parliament, was the Judge President of the Western Cape High Court.
When Hlophe’s Party, the uMkhonto weSizwe party nominated him to the JSC, the Democratic Alliance, Freedom Under Law, and Corruption Watch urgently challenged this appointment and won. They will all be back in court on Tuesday and Thursday, for a final resolution.
In September last year, the Western Cape Division of the High Court granted an interim interdict, preventing Dr John Hlophe from taking part in Judicial Service Commission processes. At the time, a review of the National Assembly’s decision to designate him to the JSC was also pending.
Hlophe was one of the six members designated by the National Assembly to sit on that body. The move was challenged in three separate applications in the High Court, by the DA, Corruption Watch and Freedom Under Law.
“This week’s litigation is the second part of a court challenge that began last year. Freedom Under Law, the DA, and CW, all brought legal challenges to the National Assembly decision to designate Dr John Hlophe as a member of the Judicial Service Commission. The reason for that challenge is essentially that Dr Hlophe had been impeached as a judge for gross misconduct when he was found to have made an attempt to influence constitutional court judges in an earlier case involving former president Jacob Zuma. Broadly the argument in this litigation is for Dr Hlophe to become a member of the JSC would be unconstitutional in that it would be inconsistent with the NA’s obligation to ensure independence impartiality and dignity and also that it would be unreasonable and irrational for him to be a member of the JSC,” says Chris Oxtoby from Freedom Under Law.
Hlophe, the first judge President to be impeached in the history of Democratic South Africa, has also approached the Western Cape High Court, challenging the interim order of the Western Cape High Court. Hlophe’s argument is that his designation to the JSC by the NA, is constitutionally sound.
He says there is no constitutional provision, barring a former judge, even one who was impeached, from being appointed to the JSC. In court, his lawyers will argue that this legal challenge is politically motivated and based on a flawed interpretation of the Constitution.
