‘The National Assembly did not exercise any discretion at all,’ one of the lawyers told the high court on Friday.
The designation of former judge John Hlophe to the Judicial Service Commission faced strong criticism in court on Thursday.
The Western Cape High Court in Cape Town heard urgent applications brought by the Democratic Alliance (DA) and other organisations.
This case arises from the fact that Hlophe was impeached following a finding of gross misconduct by the JSC.
The applicants in the litigation are the DA, Freedom Under Law (FUL), and Corruption Watch.
The respondents include Hlophe, the uMkhonto weSizwe (MK) Party, and National Assembly Speaker Thoko Didiza.
Parliament criticised over Hlophe JSC designation
During proceedings, Advocate Wim Trengove, counsel for FUL, argued Parliament’s decision to pass a motion that cleared the way for Hlophe to serve on the JSC was not properly considered.
“The National Assembly did not exercise any discretion at all. It did not make a choice.
“It passed the buck to the MK Party; that is classically unlawful decision making. It secondly, failed to make its choice in the public’s interest,” he said.
Trengove clarified that, unlike the DA and Corruption Watch, FUL was not seeking interim relief, such as an interdict.
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Instead, the organisation is seeking a review and overturning of Hlophe’s designation to the JSC.
“We are not here participating in anybody else’s application. We are here with our own application for a final order.
“It so happens that it has been convenient and agreed by all that this application be heard together with all the other applications of other people who seek interim relief,” the lawyer said.
Judicial independence
Advocate Max du Plessis, who also represents FUL, argued before the full bench—comprising Gauteng High Court judges Colleen Collis and Selby Baqwa, as well as Free State High Court Judge Johannes Daffue—that the National Assembly’s designation of Hlophe was irrational.
He highlighted that the primary role of the JSC was to protect judicial independence and maintain public confidence in judicial appointments.
Consequently, Hlophe, due to his finding of gross misconduct, was deemed unsuitable to participate in the decision-making process regarding judicial appointments.
“His position in the JSC means that the JSC itself cannot achieve the purpose of appointing fit and proper candidates,” Du Plessis told the court.
Watch the proceedings below:
DA interdict
DA’s lawyer, Advocate Ismail Jamie, contested the claim that the case should be heard by the Constitutional Court (ConCourt).
Jamie referenced a prior court decision to bolster his argument that the high court had the authority to issue an interdict while the review application was pending.
The lawyer emphasised that, although unprecedented, Hlophe’s designation was an “error of law” and “irredeemably irrational”.
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“It arises from the misapprehension of the ANC that it simply had to comply with the rules. Those assertions were incorrect.
“It would make no sense to anyone who looks at the process and says, ‘Well, if you are not able to be one of the people that are being selected, how on earth can you be in a position to select those people’,” the advocate argued.
“The fact that it’s unprecedented factually doesn’t, with respect, mean that it is untethered from legal principle and, in particular, common sense,” Jamie added.
Speaker neutral in Hlophe case
Advocate Adila Hassim, counsel for Didiza, reminded the judges that the speaker would abide by the court’s decision regardless of the outcome.
“It’s not for the speaker to defend the views of some political parties over others,” Hassim said.
Didiza, in her affidavit, clarified that neither the Constitution nor Parliament’s rules automatically disqualified Hlophe from being appointed to the JSC, despite his prior removal as a judge.
READ MORE: Black Lawyers Association supports impeached judge Hlophe’s legal right to sit on JSC
Hlophe’s lawyer, Advocate Thabani Masuku, expanded on this argument, asserting that the Constitution grants Parliament the authority to establish its own procedural rules.
“There is a constitutional autonomy given to Parliament or the National Assembly to decide how to constitute the designated six members that serve in the [JSC],” Masuku argued.
The case will continue in court on Friday.
