Former judge John Hlophe’s nomination to represent the National Assembly on the Judicial Services Commission (JSC) posed an early test for the new government of national unity. It failed because the ANC followed the path of least resistance.
This creates a nightmare for the judiciary and confirms what President Cyril Ramaphosa’s selection of ANC cabinet ministers suggested — that his unwieldy coalition is beholden to the troubled inner workings of his party. Plus ça change.
There was hope that things may unfold differently after ANC chief whip Mdumiseni Ntuli took advice and withdrew the motion for the appointment of parliamentary representatives to the commission for more consultation.
Speaker Thoko Didiza ably dealt with objections from Hlophe’s uMkhonto weSizwe party and the Economic Freedom Fighters.
Consultation did happen, but on Tuesday she wrote to NGOs that there was no impediment in law to Hlophe serving on the JSC. Ntuli told the assembly sitting the same, paving the way for Hlophe’s appointment. But there is a lacuna in the law precisely because the present scenario is so unthinkable that lawmakers could not have foreseen it.
Hlophe was impeached for flouting judicial ethics by trying to sway two constitutional court justices to decide applications relating to the arms deal saga in Jacob Zuma’s favour. It now falls to him to decide whether aspirant judges can bring integrity and impartiality to the bench.
And he will do so while answering directly to Zuma, who has faced charges of rape, corruption and contempt of court. Judges who heard these cases may well invoke a reasonable apprehension of bias and ask for Hlophe’s recusal from their interviews with the JSC for promotion to higher courts.
It will delay judicial appointments and compromise a structure that has struggled to reclaim respectability after Mogoeng Mogoeng allowed MPs who serve on it to misconduct themselves. Incoming chief justice Mandisa Maya will have to manage an inherently political problem, but is not well-placed to do so given her past friendship with Hlophe.
To avert the above, parliament’s decision will be challenged in court, primarily on the basis of rationality. It is not a difficult argument to make but it invites the court to the terrain of the legislature, where judges are rightly loath to tread.
The alternative was for the ANC to oppose the nomination and allow the Democratic Alliance to call for a division. But the party could not trust its members who would have preferred a pact with Zuma to one with the DA to follow the whip in a secret ballot.
Hence the cop-out, probably at the direction of Luthuli House.
If the May elections signalled that voters will punish corruption and cowardice, the ANC is still not listening.
