The Constitution is not instructive whether the impeached former judge president of Western Cape and the leader of the MK Party (MKP) in parliament John Hlophe is legible or not for the position of a commissioner at the Judicial Service Commission (JSC) – a fact causing a legal lacuna, which only the highest court in the land – the Constitutional Court – can help unlock.
If we remember that the three branches that constitute the government are the legislature, the executive and the judiciary, then there will be some appreciation, perhaps conceptually, that the apex court forms part of the three branches of government as an “unelected judiciary”, a position that is often mockingly referred to as counter-majoritarian dilemma.
By definition, where there exists a lacuna in the law, which is to say there is no applicable law in the statutes, the Constitutional Court, through its intervention must give direction.
But there is also a second hurdle to cross. Hlophe has been appointed a member of parliament (MP). The National Assembly including house speaker and ANC chief whip, among others, have agreed that Hlophe take his position at the JSC without any hindrance.
Section 89 of the Constitution makes an explicit reference to what remedies need to be mounted to remove an erring president, who seriously violates constitutional provisions; a president who engages in serious misconduct; and a president whose ability to perform his functions is in question.
Section 89(2) further states that such a president, removed from office for the said transgression, “may not receive any benefits of the office, and may not serve in any public office. But section 171 (1)(2)(3), pertinent to the JSC, prescribes that the judge’s removal from office, if the JSC finds them of incapacity or gross incompetence or guilty of gross misconduct, must be removed by the National Assembly by a resolution adopted and a supported by at least two-thirds of its members.
Which means, the impeachment of the president debars him or her from serving in public office, whereas on whether it is permissible for an impeached judge to serve in public, the Constitution and the law are silent.
It is that lack of clarity in both the law and the Constitution that causes a measure of consternation, and legal uncertainty.
The question that arises is what must be done?
The MKP has in the National Assembly voted for its leader, Hlophe, to be among the MPs designated to represent them at the JSC, a move that was not objected to by the Speaker Thoko Didiza, and Mdumiseni Ntuli, chief whip of the majority party in parliament. But outside parliament, a legal challenge has been mounted to object to the appointment of Hlophe as one of the six parliamentary representatives at the JSC.
The JSC’s function, established in terms of section 178 of the Constitution, is to select “fit and proper” candidates to serve as judges, and to hear complaints lodged about erring or incompetent judges, as well as to investigate complaints about judicial officers.
Among several charges Hlophe faced, were a complaint of misconduct by two Constitutional Court justices.
The grounds on which the case turned was that he had sought to influence the outcome of a matter relating to the then deputy president Jacob Zuma’s corruption charges. This, among other charges, appeared to have been the matter that sank his career as a judge.
The JSC in 2022 recommended that parliament suspend Hlophe, a process that led to an impeachment vote in March this year.
The DA, AfriForum, and Freedom Under Law have filed papers challenging his appointment to the JSC. All the applicants seem to base their arguments on the question of “irrationality” – arbitrarily conceived decision by the National Assembly not supported by reason, mental clarity, or a fair consideration of facts.
Some litigants in the matter, state that even if he had escaped censure for seeking to influence justices to help Zuma escape charges of corruption he was facing before he became judge president, he would, among other things, still have to face other charges, including of allegedly assaulting another judge, and calling a colleague “rubbish and a piece of sh#t”.
Now, as the matter goes for adjudication, it remains to be seen how the Constitutional Court will rule, given the fact that there is no legal rule both in the Constitution and the law that prohibits Hlophe to take his place with the JSC.
Or will Hlophe’s fate be determined by the National Assembly’s inability to exercise its “discretion” which it mistakenly thought it did not have?
- Mdhlela is a freelance journalist, an Anglican priest, an ex-trade unionist
