Civil society urges MPs to drop Hlophe nomination to JSC

Six civil society organisations have written to National Assembly speaker Thoko Didiza expressing deep concern about the possibility of impeached judge John Hlophe becoming one of the assembly’s representatives on the Judicial Service Commission (JSC).

They have urged parliament not to vote to designate Hlophe as a member of the JSC “to protect the integrity of the JSC, the judicial appointments process, and the judiciary”.

The JSC makes nominations to fill vacancies on the bench. It includes six members designated by the National Assembly and four members of the National Council of Provinces, four people designated by the president, and the minister of justice.

The list of designated members, including Hlophe, who is chief whip of MK, was on the order paper of the assembly on Tuesday but ANC chief whip Mdumiseni Ntuli withdrew the motion for further consultation between political parties to take place.

Hlophe was removed from his office as a judge for gross misconduct after it was found that he tried to influence Constitutional Court justices to decide a politically sensitive case in favour of former president and present MK leader Jacob Zuma. The finding of gross misconduct was made by the JSC and the courts, and parliament impeached him.

In the letter to Didiza, Freedom Under Law, the Council for the Advancement of the SA Constitution, Judges Matter, Helen Suzman Foundation, Defend our Democracy and the Ahmed Kathrada Foundation said that the JSC played a central role in the appointment of judges.

“Bearing in mind the extensive powers vested in the judiciary under the constitution, it is no exaggeration to say that the work of the JSC is therefore crucial to the rule of law and constitutional democracy in SA,” they said.

They noted that the JSC had been criticised often for failing to carry out its constitutional mandate properly, and the courts found it unlawfully on several occasions.”

It was “vital that those individuals designated to serve on the JSC are themselves individuals with a demonstrated commitment to upholding constitutional democracy, the rule of law, and the independence of the judiciary”, they said.

“Designating an individual to the JSC who has been found by the very body in question to have committed gross misconduct and has been removed from a position as a judicial officer to play a role in the selection of other judicial officers would be completely inappropriate,” the civil society organisations said in their letter to Didiza.

“It would be irrational and, in our view, susceptible to legal challenge, and it would undermine public confidence in the judicial appointments process, and thereby in the judiciary.”

Other MPs on the list of nominees are EFF leader Julius Malema and the DA’s Glynnis Breytenbach, who served on the body previously. The ANC proposed new national legislature members Molapi Soviet Lekganyane and Fasiha Hassan. ActionSA nominated veteran MP and parliamentary leader Athol Trollip. 

The National Assembly approved ANC nominee Faith Muthambi, the DA’s Adrian Roos, MK’s Sibonelo Nomvalo and EFF’s Omphile Maotwe as its representatives on the Magistrates Commission. Muthambi was implicated in allegations in the state-capture commission report. 

Judges Matter research and advocacy officer Mbekezeli Benjamin said it was incumbent on parliament to select only members who meet high standards.

“An obvious disqualifier is anyone who has been implicated in serious ethical breaches, state capture and/or misconduct. Parliamentarians represent the people of SA in those commissions (JSC and Magistrates Commission), and parliament must send only the best representatives,” he said. 

“We do not believe that adv Faith Muthambi is a suitable representative of parliament on the Magistrates Commission, and Dr John Hlophe is a suitable representative for parliament on the Judicial Service Commission.”

Freedom Under Law executive director Judith February said it was “plain wrong” for someone who was removed from judicial office for gross misconduct to sit on a body responsible for appointing judges. 

Council for the Advancement of the SA Constitution executive secretary Lawson Naidoo said: “It is totally illogical and irrational for someone who has been found guilty of gross misconduct by the JSC and impeached by parliament to be appointed as a member of the JSC, to be part of the structure that nominates fit and proper people as judges. It undermines the credibility of the JSC.”

ensorl@businesslive.co.za