Former Western Cape judge president and uMkhonto weSizwe (MK) party parliamentary leader John Hlophe has signalled that he will turn to the high court to challenge the process whereby he was impeached, after the constitutional court denied him direct access.
“I intend to launch a high court application raising exactly the same issues that I raised in the application to the constitutional court,” he said in an answering affidavit filed in response to Freedom Under Law’s legal challenge to his appointment to the Judicial Service Commission (JSC).
“In my intended application, I seek an order declaring the conduct of the NA [National Assembly] in adopting a resolution in terms of section 177(1)(b) of the Constitution without conducting a lawful inquiry to be unconstitutional.”
Hlophe added that he also intended to revive an application before the supreme court of appeal to overturn the JSC finding that he had committed impeachable gross misconduct. It was abandoned after the state stopped funding his legal fees.
“As soon as state funding for my legal representation is approved, I intend to file an application reinstating my appeal.”
Hlophe’s counsel said the answering affidavit, which is as yet unsigned, was revised to address the apex court’s decision on Tuesday that his application did not engage the court’s exclusive jurisdiction.
That decision comes a fortnight before the Western Cape high court is due to hear applications by Freedom Under Law, the Democratic Alliance (DA) and Corruption Watch to set aside his appointment to the JSC as irrational and unlawful.
In his composite answering affidavit to the three applications filed last Friday, Hlophe said the parties wrongly premised their present challenge on the assumption that his removal was an irrevocable fact.
“The extant application by the DA assumes that the processes have all been concluded when [that] simply is not the case.”
He approached the apex court in December to avert his removal and the loss of the lifelong financial benefits afforded to judges, pleading that the National Assembly impeachment process was unconstitutional.
It involved no “parliamentary oversight in relation to the JSC’s adjudication of a complaint of gross misconduct”, as the portfolio committee had simply rubber-stamped the commission’s decision recommending his impeachment.
Its proper remit, he said, was to review the merits of the decision.
“I believe that the NA wrongly took the attitude that it was bound by the findings of the majority JSC on the question of whether I had committed gross misconduct, and would not conduct its own independent inquiry on the basis of the obligations it has under section 165(4) of the Constitution,” he said in his answering affidavit to Freedom Under Law.
By believing the Constitution limited its inquiry to the appropriate sanction, he continued, it had abrogated its duty. And even on the matter of sanction, it erred in not hearing “my side of the evidence”.
But the parliamentary processes required for removing a judge and a sitting president differ markedly and his approach to the apex court was widely seen as desperate and doomed.
Hlophe has challenged the disciplinary process at every turn since he was accused of trying in 2008 to sway two constitutional court justices to rule in favour of Jacob Zuma in cases relating to the arms deal corruption charges against the then aspirant president.
In February, as the parliamentary vote on the portfolio committee’s recommendation that he be removed from the bench was imminent, he filed an urgent application to the high court to halt the process pending a decision on the application before the constitutional court.
It was dismissed hours before the sitting where MPs voted by 305 to 27 to adopt the committee’s report.
President Cyril Ramaphosa confirmed Hlophe’s removal in early March, almost 16 years after he approached justices Bess Nkabinde and Chris Jafta on what the Judicial Conduct Tribunal termed an apparent “political mission” to intercede in Zuma’s favour.
In June, he was sworn in as an MP for the MK party, which proceeded to nominate him as one of the legislature’s representatives to the JSC.
His subsequent appointment created the unprecedented situation of a judge who was found guilty of gross misconduct being designated by the chamber that removed him from the bench to serve on the same commission that recommended his impeachment.
The DA, Freedom Under Law and Corruption Watch argue that the appointment was irrational and that this history rendered him unsuitable for a role in making judicial appointments as a member of the JSC.
Hlophe has countered that section 57 of the Constitution gave the National Assembly the right to determine its own processes, and to make its own appointments, and that the high court could not encroach on its terrain by dictating who it may designate to the JSC.
The MK party’s nomination of Hlophe sharply divided other political parties.
The ANC decided not to oppose it on the basis that nothing in law or in the rules of parliament barred an impeached judge from being appointed to serve on the JSC.
But Freedom Under Law argues in its court papers that this thinking was rooted in a material error in law, which alone was sufficient cause to set aside the decision. It said section 178(1)(h) of the constitution conferred on the National Assembly, as a collective, a clear discretion in this regard.
“The National Assembly’s power to ‘designate’ does not mean that any six members of parliament nominated by political parties would suffice, and that the National Assembly is blindly bound to accept any candidate which is put forward.”
By following the ANC’s contrary interpretation of the clause, and believing its hands were tied in opposing Hlophe’s nomination, the chamber abdicated that power to a minority party and failed in legal obligation to exercise it rationally.
Freedom Under Law further submitted that Hlophe was unfit to serve on the JSC not only because he was removed for gross misconduct, but because of his ongoing, unsubstantiated attacks on the commission.
“He remains — despite all the findings against him — unrepentant and recalcitrant,” the organisation’s executive officer, Judith February, argued.
“He is unfit to be a member of the JSC because he has continuously — without any factual or legal basis — sought to undermine the credibility of the JSC, the fair process it conducted into the allegations against him, as well as the decisions by our highest courts, senior judges and the National Assembly.”
In reply, Hlophe maintained that the legal basis for the JSC’s decision was dubious and that he believed it was acceptable for judges to discuss pending matters in a collegial manner.
“Judges make remarks to each other about their respective cases. That, in my view, is a healthy culture between judges,” he wrote.
“Judges enjoy the presumption of judicial independence — which means that irrespective of private or public remarks made about a pending case, they are expected to be capable of acting with independence and impartiality.”
Hlophe reiterated that when he spoke to Nkabinde and Jafta: “I did not persuade them. never intended to persuade them.”
He added that he would use his position as a member of the National Assembly to promote “a culture in which judges are freed of the fear of retribution and arbitrary removal from judicial office for remarks they make to each other on pending matters”.
Turning to the applicants’ argument that having been found guilty of gross misconduct rendered him unfit from sitting on the commission that made judicial appointments, Hlophe said this simply incorrect.
“The basis of my removal from judicial office does not disqualify me from holding public office as I currently do.
“It does not disqualify me from being a minister of justice or a president or a member of the NA in the JSC,” he said, adding that as president “I would be responsible for appointing judges”.
He has accused the applicants of pursuing a racist agenda rooted in opposition to transformation of the bench, which he said he planned to further as a member of the JSC.
