Former Western Cape Judge President, John Hlophe. Picture: Gallo Images / Foto24 / Bongiwe Gumede
Experts say the Umkhonto weSizwe (MK) party’s only option for having one of its members appointed to the Judicial Service Commission (JSC) is to field another candidate.
This was after the Western Cape High Court in Cape Town dismissed an application by MK deputy president John Hlophe for leave to appeal an interim order preventing him from being a member of the JSC.
The experts ruled out any chance of success if Hlophe appealed.
Hlophe had been forbidden from participating in any JSC activities pending a review of the National Assembly’s decision to appoint him to the body.
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Joined by Freedom Under Law and Corruption Watch, the DA later approached the Western Cape High Court in Cape Town to review parliament’s decision to designate Hlophe to the JSC.
In September, a full bench ruled in favour of the DA, Freedom under Law and Corruption Watch.
The MK party’s urgent application in the High Court in Johannesburg to halt JSC interviews until Hlophe could be part of them, failed.
On Friday in judgement, also by a full bench, the court ruled that there were no prospects of success in the appeal.
MK national spokesperson Nhlamulo Ndhlela said the party’s legal team was “reviewing the outcomes of this judgment. We will revert at the right time. As you know, courts are in recess,” Ndhlela said.
Commenting on the Hlophe saga, Alison Tilley, coordinator of Judges Matter – a civil society and advocacy project dedicated to monitoring the South African judiciary – said it would be “more fruitful for the MK to put another representative in place, rather than keep trying with Hlophe”.
Tilley said the JSC played “a critical role in judicial appointments and disciplinary processes”.
“Hlophe serving on the JSC would erode public trust in the commission’s integrity.
This issue becomes particularly pressing in cases involving disciplinary matters,” Tilley said. “Despite having put forward some novel arguments to date, on why he should be allowed to serve on the JSC, it is difficult to say if there are further options left for Hlophe,” she said.
University of Pretoria law lecturer Dr Llewelyn Curlewis dismissed any possibility of a Hlophe appeal success. “In any event, Hlophe does not stand a reasonable chance of success on appeal. “I am therefore not surprised that his application for leave to appeal was denied by the Western Cape High Court.
“He obviously may elect to approach the Supreme Court of Appeal or with a Constitutional Court petition application to basically overrule this latest development. “It may also be a fruitless effort for him to request for substitute consent to continue with his appeal,” Curlewis said.
“If you are not fit and proper to preside as a judge, having been removed as a result of your own misconduct, how can anyone trust you to appoint and evaluate judges who must also comply with that requirement? Hlophe serving on the JSC would make “absolutely no sense and would be frowned upon”.
“This is about pure political interest and not in the best interest of the judiciary,” he said.
In the judgment delivered by the full bench, the judges ruled that there were “no prospects of success” in the appeal brought by the MK party.
“Generally, but significantly, the grounds of appeal by both Hlophe and the MK are, for the most part, a repetition of the arguments before this court, which were dismissed in the judgment sought to be appealed against.
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