AfriForum approaches ConCourt to get Hlophe kicked off JSC

Lobby group AfriForum has approached the Constitutional Court in a bid to get impeached former Western Cape High Court John Hlophe kicked out as a member of the Judicial Services Commission (JSC).

Hlophe, who became the first judge in the country’s history to be impeached, was elected earlier this month to serve on the JSC, a body that appoint judges and regulates their ethical and professional conduct in South Africa.

Mixed views greeted the election of the uMkhonto weSizwe (MK) Party MP into the JSC and now AfriForum wants him out.

Hlophe’s election ‘irrational, unlawful’

AfriForum in its papers said Hlophe’s election is “irrational, unlawful and in conflict with the National Assembly’s (NA) constitutional duty” and wants his appointment set aside.

According AfriForum CEO Kallie Kriel, it is “unthinkable that aspiring judges ethics, integrity and suitability to serve as a judge should be assessed by Hlophe as a member of the JSC”.

“It is essential that AfriForum fights Hlophe’s appointment to the highest court because his presence in the JSC seriously undermines the credibility and independence of the judiciary, while it also undermines the rule of law.”

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JSC interviews

AfriForum also argued that it would be inappropriate for Hlophe to be involved in deciding who the next judge president of the Western Cape would be given his animosity with deputy judge president Patricia Goliath.

According to Kriel, the JSC will already conduct interviews with prospective judges in October this year and it would violate the public’s trust in the judiciary if Hlophe were to be part of the interview process.

Goliath laid a gross misconduct claim against Hlophe in three years ago, for among other things, that he assaulted Judge Mushtak Parker, used abusive language towards her and delegated duties meant for her position to his former wife, Judge Gayaat Salie-Hlophe, who was the deputy judge president’s junior.

Hlophe, in return, filed a counter-complaint against Goliath which included allegations of racism and gross incompetence.

ALSO READ: Mixed reactions to John Hlophe’s JSC role

Duty to protect courts

In AfriForum’s court documents, the lobby group argued that the National Assembly under Article 165 of the Constitution, has a duty to assist and protect the courts, among other things, to ensure the courts’ independence, impartiality, dignity and effectiveness.

“By appointing Hlophe, the NA not only neglected its constitutional duty, but acted directly contrary to the Constitution,” said Kriel.

The lobby group argued that judges who would appear before Hlophe could be involved in reviews and appeals once MK party leader and former president Jacob Zuma’s criminal case is finally decided.

Urgency

AfriForum argues that the case can be brought directly before the apex court because it has exclusive jurisdiction over the case and because the case is urgent.

In April 2021, the Judicial Conduct Tribunal found Hlophe guilty of gross misconduct. The decision was confirmed by the JSC, which recommended that parliament impeach him. He was impeached in February after a vote in parliament.

Hlophe’s  conviction resulted from his attempts to unlawfully influence two judges of the Constitutional Court, Judges Bess Nkabinde and Chris Jafta, in 2008 to rule in favour of Jacob Zuma in cases before them.

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