National Assembly behaved inconsistently with Constitution when it designated Hlophe to serve on JSC - WC High Court

CAPE TOWN - The Western Cape High Court said that the National Assembly behaved inconsistently with the Constitution when it agreed to the uMkhonto weSizwe (MK) Party’s John Hlophe being designated as one of six MPs to serve on the Judicial Service Commission (JSC). 

In setting aside the decision on Monday, the court said that the National Assembly's decision was neither lawful nor rational considering his impeachment as a judge.

The Democratic Alliance (DA), Freedom Under Law (FUL) and Corruption Watch all challenged Parliament's decision in separate applications, which the court heard as a single matter in February. 

In its judgment, the court found Hlophe not to be a fit or proper person for the job.

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The designation of its representatives to the JSC was one of the first decisions the new Parliament had to make in July last year.

As the main opposition party, the MK Party is permitted to make a nomination from its ranks and chose Hlophe because of his vast experience as a jurist.

The DA, Freedom Front Plus and African Christian Democratic Party (ACDP) objected, given that only five months earlier, the same House had impeached him as a judge on the recommendation of the very body he now sought to return to as an MP. 

In its judgment, the court said that while Hlophe's experience was undisputed, his impeachment on gross misconduct charges makes him unsuitable for the job and that the National Assembly had considered irrelevant considerations in arriving at its decision. 

The court criticised Parliament for relying on the premise that nothing in the Constitution bars a member of the National Assembly to the JSC. 

"The National Assembly was obliged to consider a glaringly relevant fact, namely that the NA had recently impeached Dr Hlophe for gross misconduct," reads the judgment. "Merely because section 178(1)(h) of the Constitution does not expressly require that a designated nominee must be fit and proper for appointment, does not imply that it would be lawful or rational to appoint individuals who are not fit and proper."

The court said in this matter that a decision by the National Assembly would be unlawful and unconstitutional if it frustrated, rather than assisted or protected the independence, impartiality, dignity and effectiveness of the courts.

The court also made an order that a judge impeached for gross misconduct may never serve on the JSC.