National Assembly delegated its duty on Hlophe to MK, court hears

The National Assembly unlawfully delegated its responsibility to appoint members to serve on the Judicial Service Commission (JSC) to the uMkhonto weSizwe (MK) party when it rubber-stamped its nomination of disgraced judge John Hlophe to serve on the commission, the Western Cape high court heard on Thursday.

Advocate Wim Trengove SC, for Freedom Under Law (FUL), argued that the constitution gave members of the assembly not simply the power but the responsibility to designate representatives to the JSC.

This meant that it must “at least make a careful choice”, which involved pausing to consider whether the nominee was suitable for appointment.

“There must be at least a discretion exercised, thought given to the question: ‘is this candidate suitable for appointment, is the candidate capable of doing the job, is the candidate someone whose participation in the appointment of judges will instil confidence in the public mind in the manner in which judges are appointed?’ ”

If the power of designation was the power to make a choice, that choice had to be rational, not random, he continued.

Trengove said parliament did not have a specific process for designating members to serve on the JSC, so it took the same approach it does when constituting portfolio committees.

“I am not blaming them, but it was a big mistake,” he added.

It had created a custom, according to papers filed by National Assembly speaker Thoko Didiza, that the house endorsed whoever political parties nominated to represent it at the commission.

The problem, Trengove said, is that the JSC is not a parliamentary committee and that MPs who served on it do not represent various political parties, as they did on portfolio committees, but the National Assembly and, vicariously, the public.

Didiza, who has elected to abide by the court’s decision, reiterated in her submissions that Hlophe’s nomination presented a unique scenario but in the absence of any law barring an impeached judge from serving on the commission, a decision was taken not to disturb the convention and to respect the mandate given to the MK party by its voters.

While some political parties, chief among them the Democratic Alliance (DA), had argued against appointing Hlophe, the ANC did not because it considered the chamber bound by the unwritten rule the speaker cited. 

Trengove said this amounted to delegating the authority vested in the assembly by the constitution to name members to serve on the JSC to the MK party, which Hlophe joined four months after he was impeached for gross misconduct.

He was asked by justice Selby Baqwa whether this implied that, though Hlophe’s nomination was clearly a unique scenario, the assembly had acted unlawfully in the past when it appointed other MPs to the JSC in the same manner. 

“Now when people follow precedent as we do in our law, can it then be said to be acting wrongly, or unlawfully or improperly or irrationally?”

Trengove said he could not speak to the past but the speaker’s submission made plain that in this instance the assembly followed the same process as when constituting committees.

“Let me assume for a moment that they have probably always done so, well then they have always acted unlawfully. An unlawful exercise of a public power does not become lawful because you have done it many times,” he added.

“It might make it humanly understandable, but it does not make it lawful.”

The first requirement of exercising public power is that it must be done by the person who holds the power. 

“You can’t defer to anyone else. You can’t pass the buck.”

Trengove said this was precisely what happened when MPs simply endorsed the MK party’s nomination on the assumption that they had no discretion to do otherwise.

“It does not matter whether they understandably did so, maybe they did. It does not matter that they might in the past have done so, maybe they did. But it is blatantly illegal.”

The second requirement was that public power be exercised in the public interest.

Here Trengove cited constitutional court justice Mbuyiseli Madlanga’s writing in Helen Suzman Foundation v Judicial Service Commission: “Without doubt the JSC’s function of recommending appointments to the senior judiciary is of singular importance.  

“Bearing in mind the importance of this function, I do not think it unreasonable to expect that those that bear the responsibility of nominating, designating or electing individuals for membership of the JSC will take their responsibility seriously and identify people who are suitably qualified for the position.”

The NA patently failed to do so, Trengove said, because it was on record that it did not think it was its place to ask whether Hlophe was suitable.

“Even before you get to rationality, the decision was fatally flawed, because the organ of state vested with the power of designation made no choice. They made no choice at all. They rubber-stamped a designation.”

Trengove dismissed the respondents’ argument that the assembly’s decision was not reviewable as administrative action because it was made by a legislative body.

“That is not so. This is an administrative decision vested in a legislative body. But they don’t make law when they designate people.”

Even if the court were to reject this argument, the decision remained reviewable in terms of the doctrine of legality, he said. 

Advocate Max du Plessis, also appearing for FUL, said it was trite that all public power must be exercised rationally. The argument by the respondents that the constitution did not expressly demand that the assembly consider the suitability of candidates nominated to serve on the JSC therefore did not hold.

This was so because the commission had the task of considering whether candidates for judicial appointment were fit and proper, and beyond that, to protect the integrity of the courts.

“The JSC process must contribute to the moral authority of the judiciary and must enhance the public’s confidence in the appointment of our judges.”

Because Hlophe has been found to be grossly unfit for the bench, “his position on the JSC means that the JSC itself cannot achieve the purpose of appointing fit and proper candidates”.

Hlophe and his party have argued that his long history as a senior judge made him eminently suitable to serve on the JSC. In February, the former judge president of the Western Cape division became the first judge to be impeached in the post-apartheid era.

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 maintains that he had done nothing wrong and will continue to seek to overturn the JSC’s finding and his impeachment.

Advocate Jamie Ismail SC, for the Democratic Alliance, pleaded for an urgent interdict barring Hlophe from taking part in the JSC’s interview with candidates for vacancies on the bench in October, arguing that otherwise these appointments would be tainted. 

The DA and Corruption Watch, the third applicant, in Part B of their applications ask for the same relief as FUL, namely that his appointment be set aside and the matter referred back to parliament to be decided afresh. 

Advocate Dali Mpofu SC, for the MK party, had objected strenuously to all three applications being heard simultaneously. He said it was “absurd” that FUL’s application be heard before those for interim relief.