Court hears three applications to halt designation of Hlophe to JSC

The Western Cape High Court is currently hearing three applications that want to halt the designation of MK Party Parliament leader Doctor John Hlophe to the Judicial Service Commission (JSC).

Hlophe was nominated by the National Assembly to serve on the JSC in July. However, the DA, Freedom Under Law and Corruption Watch are opposed to Hlophe’s nomination.

The three applications before the Western Cape High Court argue that the decision of the National Assembly to nominate Hlophe is irrational as he, as an impeached judge, cannot be part of the JSC to appoint judges, when he was found to have committed gross misconduct.

“The decision was fatally flawed even before you get to rationality, it was fatally flawed because the organ of state vested with the power of designation didn’t make a choice, made no choice at all they rubberstamped a nomination by MK,” says Adv. Wim Trengrove, Counsel for Freedom Under Law.

“The first is that the designation by the National Assembly of Dr. Hlophe was substantively irrational. The second is that it offended, it did not advance of what it required, the obligation of Parliament to comply with section 165 (4) of the constitution instead it undermined and retrogressive in respect of section 165 (4),” says Adv. Ismail Jamie, Counsel for the DA.

However National Assembly Speaker Thoko Didiza says she will abide by the court’s decision.

“When she received the letter she responded, she took the view that it is the prerogative of political parties to nominate any member to be on the list of designees to the JSC and that she could not prevent that but the call was to stop the vote and so she took the view it would not be appropriate to stop the vote because anyone can be nominated. The question who gets onto the list ultimately must be decided by the house,” says Adv. Adila Hassim, Counsel for Speaker.

The African Transformation Movement has also joined the court case. The party says the High Court has no jurisdiction over the matter.

“Dispute that involve important questions, this is clear an important question, does it relate to question of separation of powers of course it does. A court intervening in a matter that was voted for by the National Assembly and saying National Assembly you acted irrationally, that touches at the heart of separation of powers, who must decide on it only the Constitutional Court,” says Adv. Anton Katz, Counsel for the ATM.

Hlophe’s legal counsel argued that he was being hounded and there was nothing preventing him from serving on the JSC.

“What more do they want from him that even when he is out of the judiciary, which is where they wanted him out. He’s now in the National Assembly they still hounding him because of his judicial past. That’s not our constitution. Our constitution makes it clear that a judge who is found guilty of gross misconduct is removed. No collateral constitutional consequences are added on to it. What they are asking you to do is to continue punishing Hlophe when Doctor Hlophe is out of the judiciary,” says Adv. Thabani Masuku, Counsel for MK.

The case will continue on Friday.

Video: DA’s urgent court application to interdict Dr John Hlophe’s JSC designation