Impeached judge-turned-MP John Hlophe could, as leader of the MK Party in parliament, become president and have complete control over judicial appointments.
“He could hand-pick anyone he wants for chief justice, the entire judiciary, but according to the DA he cannot sit on the Judicial Service Commission (JSC) which is only an advisory body,” MK Party advocate Dali Mpofu submitted on Friday.
This, he said, highlighted the absurdity of the challenges brought by the DA, Corruption Watch and Freedom Under Law (FUL) who are seeking court orders overturning the National Assembly vote, by majority, in favour of his appointment to the JSC.
Mpofu said even murderers, after serving their time in prison, could become MPs five years later which would entitle them to be appointed to the JSC. He accused the applicants of being a “racist cabal” who launched an “avalanche of attack from all corners” against Hlophe in an effort to impoverish him and the MK Party.
The applicants say the National Assembly did not properly consider whether Hlophe should have been nominated and the impact of having an impeached judge sitting on a body which interviews and makes recommendations for judicial appointments.
They say the decision was irrational and had been based on “a convention” in which political parties accepted the nominations of others without demur.
Mpofu said the matter was only in court because the DA lost the vote (in the National Assembly) and the applicants were seeking to change the constitution through the backdoor.
In replying arguments before judges Selby Baqwa, Johannes Daffue and Colleen Collis, sitting in the Western Cape High Court, advocate Wim Trengove, for FUL which is asking for final relief, said the court could decide a constitutional issue and, citing case law, he said courts should not shy away from ruling in matters where a case had been made.
This in spite of a similar challenge by AfriForum pending before the Constitutional Court.
Trengove said the evidence showed MPs “had adhered to the convention”, and the ANC in particular, believed it had no choice because of a lacuna in the law in what was an unprecedented matter.
“Our case is not against Hlophe. It’s against the National Assembly that we say failed to exercise its public power in the public interest. That is why it’s unlawful.”
Advocate Michael Bishop, for the DA, which with Corruption Watch, is only seeking an interdict preventing Hlophe from sitting on the JSC pending a review or a decision by the apex court, said the legality of Hlophe’s impeachment was irrelevant and “we accept that he is an MP”.
“This is not about amending the constitution to impose restrictions on impeached judges. It’s about applying the principles of rationality and complying with the constitution.”
The JSC had to have public credibility “and we accept ordinarily an MP would be able to satisfy that, but when a person undermines that credibility, that person cannot be designated without exercising discretion”, he said.
Bishop urged the court to grant the interim relief, even if it granted final relief in FUL’s matter. This was because if the final relief was granted, and Hlophe appealed that, then that order would be suspended. However, any appeal against an interim order did not suspend the order “and we want to prevent Hlophe attending the JSC’s October session”.
Advocate Mitchell de Beer, for Corruption Watch, submitted Hlophe was impeached in February this year, relating to conduct in 2008 for attempting to influence Constitutional Court judges to find in favour of Jacob Zuma, and “the first thing he does is join Zuma’s political party”.
“We are here because he still refuses to appreciate the gravity of his conduct and the impact it could have on the independence of the judiciary.”
Judgment was reserved, but it is expected a ruling will be given before the JSC session in October.
