Dr John Hlophe. Picture: Armand Hough / Independent Newspapers
THE Constitutional Court must clarify the eligibility criteria for Judicial Service Commission (JSC) membership by parliamentarians to help the seventh administration turn over a new leaf, says policy analyst Nkosikhulule Nyembezi.
“Rebuilding public trust in politicians and the judiciary is arguably one of the biggest challenges facing South Africa, and it is crucial to blocking the rise of the anti-establishment public sentiment suspicious of the intentions of those opposed to (Umkhonto weSizwe Party’s parliamentary leader) John Hlophe,” Nyembezi said after Hlophe was interdicted on Friday from participating in the processes of the JSC, pending a review of the decision of the National Assembly to designate him as one of its representatives.
The Western Cape High Court delivered its judgment in an urgent application brought by the DA, Freedom Under Law (FUL) and Corruption Watch.
Hlophe, who was impeached earlier this year, was designated by the National Assembly as one of its six representatives to the JSC.
The applicants want the courts to review and set aside the National Assembly’s decision to designate Hlophe as one of its representatives to the JSC.
Delivering his judgment, Judge Johannes Daffue granted the interim interdict pending the review applications.
“Pending the determination of the merits of the applicant’s review of the National Assembly’s decision to designate the first respondent (Dr Hlophe) as its representative to the JSC, either in part B of this application, or by the Constitutional Court, whichever occurs first, Dr Hlophe is interdicted from participating in the processes of the JSC,” Judge Daffue said.
The court said it was evident that the National Assembly failed to appreciate that it had discretion in designating MPs to the JSC and that it failed to exercise such discretion.
The court also said it was satisfied that at least a very strong prima facie case had been made to be successful in the review applications. It said the applicants made a valid point that the legitimacy of the JSC’s processes would be tainted if Hlophe was allowed to participate in the JSC interviews and deliberations.
“This will undermine public confidence in the JSC.”
Nyembezi said that at a time when public confidence in political and other institutions was fragile and party loyalties less secure than ever before, there was a strong sentiment among supporters of new parties that the fallout from the court decision to exclude Hlophe from the JSC was a “clumsy own goal for the DA” that no one should characterise as a decisive victory as, in the long run, he would decide on his replacement and would still vote for or against JSC recommendations tabled in Parliament.
“The parties in Parliament that supported Hlophe’s nominations did so on a promise of introducing change in the JSC that explicitly referred to conduct and policy. Hlophe’s pride in his legal background and the values he took from it were a crucial part of his pitch during the Justice Department’s budget vote debate – and a point of difference with his opponents, whom the MKP pilloried for cronyism and a lack of probity,” Nyembezi said.
“The danger is that specific decisions on who in the JSC must recommend who must be appointed to be a judge are, or appear to be, tainted.
“The place of political influence in judicial appointments is a complicated issue. Of course, individuals and organisations use their financial and human resources to advance their aims and interests. But in a functioning democracy, the political influence of politicians and some lobby groups is mediated through public opinion and Parliament, and the work of the JSC must not be unduly influenced or seen to be unduly influenced,” Nyembezi said.
DA national spokesperson Karabo Khakhau welcomed the court decision as a landmark victory for the party and for the integrity of South Africa’s judiciary.
“An impeached judge, found guilty of gross misconduct, should not hold a position on the JSC, a body entrusted with the responsibility of selecting judges and upholding the highest standards of judicial integrity,” Khakhau said.
MKP spokesperson Nhlamulo Ndhlela last week said the judgment was “regrettable but not surprising”.
“The judgment is gross judicial overreach and disregards the provision of the very constitution it purports to uphold. It purports to interdict Dr Hlophe from participation in the JSC process but the interdict remedy was not sought or granted against Parliament, which voted to appoint him in the first instance,” Ndhlela said.
He also said the JSC could not sit without Hlophe until the decision by Parliament to appoint him was reviewed and set aside.
“A detailed plan of action will be communicated next week after consulting our structures, the progressive caucus and any other like-minded organisations representing our people,” Ndhlela said.