Disgraced judge John Hlophe will serve on JSC after GNU fails to ...

John Hlophe, one of only two judges ever stripped of their positions in the democratic South Africa, will now take a seat on the primary body responsible for serving as a watchdog for judges.

This was confirmed on Tuesday, when a motion was carried in the newly constituted National Assembly that Hlophe would be the designated representative for the MK party on the Judicial Service Commission (JSC).

In one of the first tests of Government of National Unity (GNU) solidarity in the legislature, the ANC, DA and other GNU parties seemed unable to find each other on the matter in advance and backed different positions – with the ANC siding with MK and the EFF that the election of Hlophe to the JSC was permissible.

DA: Neither reasonable or rational to vote in Hlophe

It is customary for the nomination and election of MPs to bodies like the JSC to go ahead smoothly, since the issue is generally taken to be the prerogative of the nominating party.

DA chief whip George Michalakis acknowledged that this was the case, and said that the DA expected “to receive a lot of criticism” for opposing Hlophe’s nomination.

Michalakis argued, however, that it was “neither reasonable nor rational” to elect Hlophe to serve on the same body that found him guilty of gross misconduct as a judge.

He also suggested that aspirant judges appearing before the JSC could well apply for the recusal of Hlophe “on the basis that the finding of gross misconduct renders him unfit to serve on a body that is to determine the fitness and propriety of others”.

Michalakis said that this raised the risk of “paralysing the JSC and tying it up in endless review proceedings”. 

The DA was backed in this stance by, among others, the Freedom Front Plus, the African Christian Democratic Party (ACDP) and Build One South Africa (Bosa).

Hlophe backed by MK, EFF and ultimately ANC

MK party chief whip Sihle Ngubane argued to the National Assembly that Hlophe’s legal experience made him a “sure fit” for the JSC – and, further, that MK had “done huge justice to the House to bring into the House a Cambridge PhD graduate (in) law”.

Hlophe sat with his arms folded next to fellow MK MP Duduzile Zuma-Sambudla while his praises were being sung by his party.

He received warm support from the EFF, which has indicated going into the seventh Parliament that it considers itself part of a so-called “progressive caucus” alongside MK.

EFF chief whip Floyd Shivambu suggested that if the DA could field members “without qualifications or directions” to the executive – an apparent reference to ministers John Steenhuisen and Dean MacPherson, neither of whom hold a higher qualification than matric – then MK’s nomination of Hlophe should be respected.

Possibly the most forceful defence of Hlophe came from Al-Jama’ah leader Mogamad Hendricks, who bellowed: “The streets have spoken!”

Hendricks also yelled that if a prospective judge candidate would demand Hlophe’s recusal from the JSC, as the DA had indicated might happen, then “​​that person don’t (sic) deserve to be on the Bench”.

GNU not united on this issue

The Hlophe issue was the first proper test of GNU solidarity in the seventh Parliament, with the matter originally withdrawn from the National Assembly order paper a week ago to allow for behind the scenes discussions. 

Daily Maverick understands that the DA had made it clear from the start to the ANC that it would object to the nomination of Hlophe by MK.

Despite the JSC’s damning findings against Hlophe, the issue of his potential membership of the JSC has become a firestorm on social media in recent days, with MK and EFF supporters arguing that even to refer to Hlophe as a “disgraced judge” is offensive.

Read more in Daily Maverick: MK party’s own goal – candidate-rigging while complaining about vote-rigging

In the end, the ANC seems to have been unwilling to take the political heat over this matter.

Chief Whip Mdumiseni Ntuli stopped short of explicitly endorsing Hlophe for the JSC position, but said: “(The ANC caucus has) agreed that in instances where the rules of Parliament are not clearly defined, we are going to have to live on the basis of the established rules and practices of Parliament.”

In a nod to the GNU, Ntuli noted that the ANC respected the DA’s concerns, but suggested that “the House should not take a position (on the Hlophe nomination) unless it has clarified its own rules”.

Parliament could still face legal action

Six NGOs wrote to Parliament last week to express their objections to Hlophe’s potential membership of the JSC. 

Freedom Under Law, the Ahmed Kathrada Foundation and Judges Matter were among those who argued that “Designating an individual to the JSC who has been found by the very body in question to have committed gross misconduct and has been removed from a position as a judicial officer to play a role in the selection of other judicial officers would be completely inappropriate… it would be irrational and, in our view, susceptible to legal challenge, and it would undermine public confidence in the judicial appointments process, and thereby in the judiciary.”

Speaker Thoko Didiza has seemingly yet to respond.

The JSC is made up of 23 members and is tasked with assessing and recommending potential judge candidates and also with considering complaints against judges.

The ANC has lost one seat on the JSC due to GNU concessions to accommodate smaller parties. It previously held three of the six seats allocated to members of the National Assembly, and is now down to two. 

Joining Hlophe as the parliamentary representatives on the JSC will be Molapi Lekganyane and Fasiha Hassan from the ANC, EFF leader Julius Malema, the DA’s Glynnis Breytenbach and Action SA’s Athol Trollip.

Only Malema and Breytenbach have previously served as JSC commissioners.

Parliamentary papers published on Tuesday also show that Hlophe will be the MK party’s deployee to the Justice Committee: the committee which recommended Hlophe’s impeachment to the National Assembly following the JSC’s findings.

Serving alongside Hlophe on the Justice Committee will be EFF MP and former public protector Busisiwe Mkhwebane – the only other current MP in the National Assembly to have been stripped of her position by a parliamentary vote. DM

Daily Maverick’s journalism is funded by the contributions of our Maverick Insider members. If you appreciate our work, then join our membership community. Defending Democracy is an everyday effort. Be part of it. Become a Maverick Insider.