Impeached judge John Hlophe. File picture: Armand Hough, Independent Newspapers
CIVIL rights organisation AfriForum has started legal proceedings to challenge the National Assembly (NA)’s recent appointment of impeached judge president John Hlophe as a member of the Judicial Services Commission (JSC) in the Constitutional Court.
AfriForum is requesting the Constitutional Court to declare that Hlophe’s appointment is irrational, unlawful and in conflict with the NA’s constitutional duty.
AfriForum has already served its court documents electronically on the Speaker of Parliament, Hlophe and the MK Party. An application requesting, among others, direct access to the Constitutional Court will be issued to the ConCourt this week.
According to Kallie Kriel, CEO of AfriForum, it is unthinkable that aspiring judges’ ethics, integrity and suitability to serve as a judge should henceforth be assessed by Hlophe as a member of the JSC.
This, he said, while Hlophe himself was earlier found unfit to serve as a judge by the JSC due to his dishonesty and gross misconduct.
“It is essential that AfriForum fights Hlophe’s appointment in the highest court, because his presence in the JSC seriously undermines the credibility and independence of the judiciary, while it also undermines the rule of law, Kriel said.
In AfriForum’s court documents, it is pointed out that the National Assembly, under Article 165 of the Constitution has a duty to assist and protect the courts, among others, and to ensure the courts’ independence, impartiality, dignity and effectiveness.
“By appointing Hlophe, the National Assembly not only neglected its constitutional duty, but acted directly contrary to the Constitution,” Kriel said.
AfriForum will argue that the case can be brought directly before the ConCourt because this court has exclusive jurisdiction over the case, and because the matter is urgent. According to Kriel, the JSC will already be conducting interviews with prospective judges in October and it would violate the public’s trust in the judiciary if Hlophe were to be part of the interview process.
In his affidavit to the ConCourt, Kriel said the main issue to be decided by the apex court is whether Hlophe’s appointment to the JSC is in violation of the rule of law. “It would, among other problems, be inappropriate that aspirant judges be assessed on their ethics, integrity and fitness for judicial office by Hlophe who himself was found guilty – by the very office he will now join – of gross misconduct and unfit to hold judicial office.”
Kriel said this can only undermine the credibility of the JSC and the integrity of the judiciary.
“The designation is not only irrational, it is also inconsistent with the spirit and objects of the Constitution,” he pointed out.
He said AfriForum brings this application in the public interest, in order to protect the Constitution, the credibility of the JSC, and the integrity of the judiciary.
Hlophe is the first judge to be removed from office after 1994 by the National Assembly. This followed after the JSC found him guilty of “dishonesty and gross misconduct”. His conviction resulted from his attempts to unlawfully influence two judges of the Constitutional Court: Judges Bess Nkabinde and Chris Jafta in 2008 to rule in favour of former president Jacob Zuma in cases before them.