SA's impeached judge ruling reinforces judiciary integrity

The recent ruling by a full Bench of South Africa's Western Cape High Court in DA (Democratic Alliance) v Hlophe and Others is of extreme importance, says the anonymous Professor Balthazar – said to be one of SA’s foremost legal minds. ‘It asserts the centrality of the JSC (Judicial Service Commission) to the integrity and legitimacy of the judiciary and the need to ensure that members of the JSC are suitably qualified for purpose.’ He adds: ‘The National Assembly (NA) is not there to act as a rubber stamp confirming a political party’s wish. That an impeached judge could be held up as a person who could sit on the JSC and contribute to the appointment of judges only has to be stated to confirm the irrationality of the NA’s initial decision.’ Writing on the Daily Maverick site, Balthazar notes the judgment was penned by Judge Nobulawo Mbhele from the Free State and Gauteng Judges Annali Basson and TP Mudau, all of whom were designated to hear this case given Dr John Hlophe’s previous position as Judge President of the Western Cape High Court. The question before the court – given his impeachment as a judge – arose as to whether the NA could legally designate Hlophe as a member of the JSC.

The first question of importance was whether the dispute was moot, as Hlophe had resigned from the JSC before this dispute was heard by the court. Balthazar notes the court held that the dispute remained live because ‘any further designation process by the NA must take place with this court’s guidance on whether the NA had a discretion to consider the fitness of the nominee for designation to the JSC in terms of s 178 (1) (h) of the Constitution’ and whether it had acted lawfully when it designated Hlophe for appointment to the JSC. On whether Hlophe was suitable to serve on the JSC, he had raised the argument – supported by the MKP and EFF – that he was eminently qualified because he has a doctorate in law and had served as a judge and because the Constitution had not provided specific qualifications or criteria for a person designated to the JSC. The court accepted that section 178 (1) (h) of the Constitution does not specifically constrain the power of the NA to designate a member to the JSC. However, it pointed out that the NA must act rationally, meaning that its action must be rationally connected to the purpose for which a power is exercised. Further, section 165 (4) of the Constitution requires that the NA must assist and protect the courts to ensure their independence and impartiality, dignity, accessibility and effectiveness.

The judgment noted that public confidence in the judiciary’s composition and its role in the administration of justice is vital. Balthazar notes while the test of ‘fit and proper’ was not expressly included for appointing someone to the JSC, the court referred to the Constitutional Court judgment in Helen Suzman Foundation v JSC. Here, the apex court placed considerable importance on ensuring that those entrusted with the responsibility of nominating and designating lawyers for membership of the judiciary must be suitably qualified to do so. The court warned that a rule that threatened the ability to appoint the best candidates for the judiciary ‘would have serious consequences for the judiciary and consequently our constitutional democracy as a whole’. To have an impeached judge as a member of the JSC effectively means that the NA had appointed someone who might have been formally eligible, but ‘was not substantially suited for appointment to the JSC’. In appointing Hlophe to the JSC, the NA was required to consider whether he was suitable for appointment. The NA did not exercise such discretion, and indeed mistakenly laboured under the impression that it did not even have such discretion. As a result, the designation of Hlophe without any proper consideration of his suitability was an improper exercise of a discretion possessed by the NA to ensure that a designee to the JSC was ‘fit and proper for the purpose of nominating judges’.

Having found that the presence of an impeached judge prejudiced the JSC’s ability to discharge its constitutional function, the full Bench held that derogatory statements Hlophe made about the retired Judge Azhar Cachalia – representing Freedom Under Law – justified a punitive cost order. Both Hlophe and the MKP were ordered to pay the applicants’ costs on an attorney and client scale. Balthazar adds the judgment represents an important step by the judiciary to protect the integrity of the legal system against the kind of flagrant abuse which has characterised this ‘sad’ Hlophe saga. He asks: ‘Is it too much to hope that in the future, courts will protect the integrity and reputation of the judicial institution by ordering punitive costs when litigants or their legal representatives engage in flagrant contempt for the judiciary and its process?

Full analysis on the Daily Maverick site