JSC gets on with its work as Hlophe storm blows over

In the end, there was barely any drama over former judge John Hlophe’s empty seat at the Judicial Service Commission (JSC)) as it began interviewing candidates this week to fill more than 50 vacancies on the bench.

Hlophe, who led the Western Cape division of the high court before he was impeached in February, resigned on Monday in protest at the decision not to postpone the sitting, pending finalisation of the legal challenges to his appointment to the commission.

Word of his resignation came from the uMkhonto weSizwe (MK) party, while commissioners were interviewing candidates for three positions at the supreme court of appeal.

JSC spokesperson advocate Sesi Baloyi confirmed that the commission had got the news from the media as it had received no direct communication from Hlophe or the speaker of the National Assembly.

“We have not had anything, so all we know, we heard from you,” she told journalists in Johannesburg at a routine, first-day briefing.

The JSC received a letter from Speaker Thoko Didiza the following day confirming that Hlophe had withdrawn from the body.

His decision followed Gauteng high court judge Stuart Willis’ dismissal last Saturday of the MK party’s application for an interdict barring the JSC from continuing with its work this week.

The party will now have to nominate another of its MPs for appointment as one of the National Assembly’s six representatives at the commission but the legislature said this process would not be completed before the current round of JSC interviews conclude next week. 

Baloyi has indicated that the commission is proceeding in the belief that it remains properly constituted. 

The MK party had argued otherwise in its court papers, saying the sitting would not be quorate in Hlophe’s absence. 

Willis dismissed this notion at the weekend, like the Western Cape high court did last month when it granted the Democratic Alliance (DA) and Corruption Watch an interdict barring him from participating in the sitting.

The DA confirmed to the Mail & Guardian that part B of its two-fold application would continue as the conduct impugned was not that of Hlophe or his party but of the National Assembly. 

Like Freedom Under Law, the other two applicants who approached the high court argued that the chamber had acted irrationally in rubber-stamping the nomination of a judge removed from the bench for gross misconduct to serve on a body that must assess the suitability of candidates for judicial appointment.

Didiza had taken the position that the law was silent on the extraordinary scenario of a former judge being nominated to become a member of the same entity that had urged his impeachment. 

Therefore, parliament opted to observe the long-standing custom of appointing whoever a particular party put forward.

Freedom Under Law told the court that this was “a big mistake” because the assembly had to consider its constitutional duty to promote and protect the independence of the judiciary when designating members to serve on the JSC.

Instead of making a choice in line with the Constitution, it made no choice at all but impermissibly delegated its power and discretion to the MK party.

“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?’” advocate Wim Trengove argued.

Asked by Justice Selby Baqwa what this implied for past parliamentary appointments, Trengove replied: “Let me assume for a moment that they have probably always done so, well, then they have always acted unlawfully.”

So, though the Hlophe chapter was short-lived, the litigation it spurred will serve to clarify the assembly’s obligations when choosing the politicians who represent it at the JSC. But its brevity was not simply the result of legal review but the commission’s resolve not to be derailed.

It did not blink at a letter of demand sent by the MK party but let it proceed to the high court on a hiding to nothing. 

Although former chief justice Raymond Zondo did much to restore decorum to JSC sittings after parliamentary representatives routinely turned these into political theatre — and denied worthy candidates appointment — Chief Justice Mandisa Maya has brought another level of discipline to the process.

Part of it is ruthless time-keeping, even if it means telling Gauteng judge president Dunstan Mlambo he has exhausted his quota of questions and is not allowed to raise another.

This happened on Wednesday when Mlambo was questioning KwaZulu-Natal high court judge Nkosinathi Chili on the apparently fractious atmosphere at the court.

Chili was interviewed for promotion to deputy judge president of the division and had said, in reply to Mlambo’s initial question, that as a deputy, he would see it as his duty to help the judge president heal any rifts: “If a division is not united, members of the public lose confidence in the justice system.” 

Chili also said he would volunteer to resolve the problem of the slow rate of finalisation of criminal trials in the regional court. 

But he stumbled when ANC MP Fasiha Hassan asked how he would handle a sexual harassment complaint at the court.

Chili, the present trial judge in the arms deal corruption case against former president Jacob Zuma, replied that he would immediately conduct a “mini investigation” and, if there was a prima facie case, suspend the colleague in question, pending the outcome of a full investigation. 

When Maya followed up by asking which legal instrument he would take these steps in terms of, he hesitated. 

Commissioner Mvuzo Notyesi intervened to ask: “Do you accept that sexual harassment constitutes a misconduct which should be reportable to the Judicial Service Commission for investigation?”

Chili replied that he did, to which Notyesi said: “Then why don’t you simply say so?” Advocate Tembeka Ngcukaitobi twisted the knife by adding: “Well, he says he is going to suspend the culprit himself.”

This is a topical, touchy subject for the JSC. 

Former chief justice Zondo last year asked Maya to oversee the drafting of a sexual harassment policy for the judiciary but this remains a work a progress. 

Pressure in this regard increased after Selby Mbenenge, the judge president of the Eastern Cape, was accused of sexual harassment by a clerk in the Makhanda division. 

This week, the Judicial Conduct Tribunal was due to start hearings in the matter. It marks the first time the tribunal has to deal with charges of this nature against such a senior member of the profession and the JSC has earned criticism for seeming to cut Mbenenge slack by not recommending his suspension, on the basis that he was already on special leave.

The JSC on Tuesday interviewed three candidates for a vacancy in the Eastern Cape division but decided not to recommend any for appointment. It settled on justice ZP Nkosi for appointment as deputy judge president of KwaZulu-Natal. 

On Monday, it decided to recommend KwaZulu-Natal high court judge Piet Koen, Western Cape high court judge Elizabeth Baartman and Johannesburg high court judge Phillip Coppin be appointed to the appellate court.

Koen was the initial trial judge in the Zuma corruption case but recused himself in January last year. He was criticised for doing so, since it made for further delay in a matter already much delayed by Zuma’s Stalingrad defence tactics.

But Koen, when pressed on the subject by Democratic Alliance MP Glynnis Breytenbach, said his belief that recusal was indicated had been vindicated. He withdrew because of the views he had expressed on the merits of aspects of Zuma’s ongoing bid to force the removal of Billy Downer as state prosecutor. 

In a subsequent application with the same aim, eventually dismissed by Chili in March, Zuma had pleaded precisely these points he had anticipated, Koen said. 

Koen was eloquent on the difficulty courts faced when confronted with accused who used multiple interlocutory applications and every possible avenue of appeal to frustrate the finalisation of a case.

“The primary question with Stalingrad is the question of availability of appeals,” he told Breytenbach but added the answer was not as simple as denying leave to appeal.

A judge could only close the door when it was clear, on the facts, that though the law allowed the applicant the right to appeal, it had been exercised in bad faith.

“But that is not something, in our constitutional dispensation, I think a court should lightly conclude.

“Even if application for leave to appeal is refused, there is another step that is available and there is another step available if that is refused, and you can go right up to the constitutional court and the constitutional court judgment — an application can be brought for it to be rescinded and that is really only when you get to the ceiling.”

He suggested that the Law Reform Commission might consider looking at limiting the number of stages of appeal that are available to litigants or defendants. 

On Tuesday, the commission recommended the appointment of Gauteng high court judge Susannah Cowen as deputy president of the Land Court after an interview in which she called for a radical judicial rethink on land reform. 

“We need to take an ambitious view of what land justice is about.”Next week, the commission will interview seven candidates for the post of judge president of the Western Cape — a division scarred by strife that festered during Hlophe’s tenure.