Mkhwebane, Hlophe’s chief justice nominations like a ‘late April Fool’s joke’

Western Cape Judge President John Hlophe and Public Protector Busisiwe Mkhwebane’s nominations for appointment as chief justice have ruffled feathers across the board, with one pundit saying “hell will freeze over” before either of the controversial characters are given the post.

“It’s an insult to the lineage of the Constitutional Court for either of them to be seriously considered as a candidate for the position,” Paul Hoffman SC – a legal expert and the director of lobby group Accountability Now – said on Wednesday.

Current Chief Justice Mogoeng Mogoeng’s term at the helm of the country’s judiciary is set to expire later this month; and last month President Cyril Ramaphosa put out a call for public nominations for his successor.

On Monday, the President’s office released a list of eight individuals whose nominations it said met the stipulated criteria –  among them Hlophe and Mkhwebane.

An independent panel still has to consider all the candidates and submit a shortlist to the President to make a final decision, though, and experts and analysts say it’s unlikely either Hlophe or Mkhwebane will feature thereon.

The Judicial Services Commission recently found Hlophe guilty of gross misconduct over an attempt to “influence, improperly,” Justices Chris Jafta and Bess Nkabinde during a make-or-break appeal involving former president Jacob Zuma’s prosecution over the arms deal. He is now facing potential impeachment by Parliament.

Mkhwebane, too, is facing potential impeachment over her investigations into the bailout the SA Reserve Bank provided for what was then Bankorp during the late 1980s and early 1990s; as well into the Vrede Dairy Farm scandal and into the Financial Sector Conduct Authority (FSCA). 

The Black Lawyers Association (BLA) was among those to nominate Hlophe and Hoffman said it was “ludicrous”.

“It reflects very poorly on the probity of the BLA that they have the sheer afrontery to nominate him when he was in so much disciplinary trouble,” he said.

Of Mkhwebane’s nomination, meanwhile, he said it was “almost a joke” –  pointing, too, to the fact that she is currently facing perjury charges.

The executive secretary of Council for the Advancement of the South African Constitution (Casac), Lawson Naidoo, emphasised that one would assume neither Hlophe nor Mkhwebane would make the final cut.

“In the case of Hlophe, he’s been found guilty of gross misconduct by the JSC, which is a grave finding – the most serious finding there can be against a judge. And in the case of Mkhwebane, the courts have on many occasions questioned her understanding of the law and she has never served as a judge, and whilst that is not a criteria for appointment it would be very surprising to have a chief justice without any judicial experience,” he said.

The Democratic Alliance’s (DA’s) Glynnis Breytenbach, meanwhile, said neither of them should have been nominated because of the impeachment proceedings against them.

“But worse, they should not have accepted if they had a shred of decency,” she added.

And Francis Antonie – who heads up the Helen Suzman FOundation – said he had initially thought their nominations were “a late April Fool’s joke”.

“Those pending procedures against them should automatically disqualify them from consideration,” Antonie said.

Those who wish to object to any of the nominations have until 15 October to do so.