We don’t need rules premised on hate as sought by Hlophe’s pursuers
Mzwandile kaBizokwakhe
The case against Dr Mandlakayise John Hlophe is a blessing in disguise even though the audacity of his detractors is galling.
All agree, no law prohibits Hlophe from sitting on the Judicial Service Commission so his being there offends something else.
To find out what that is, let’s employ elimination and to frame the exercise, we need to first ask why the JSC exists.
Section 178 (5) of the Constitution says the JSC advises the government on the judiciary or administration of justice, and interviews as well as recommends candidates for judicial posts and finally deal with complaints against judges.
This is what the JSC does.
Does the Constitution bar the worst criminal from performing any of those duties? Nope.
The worst criminal could be an MP, and therefore electable to the JSC.
The recent Jacob Zuma ineligibility case reminded us that the worst criminal could be an MP five years after they have completed their sentence.
Misconduct is a “wrong, improper behaviour” that falls outside of the criminal code so Hlophe’s detractors want one guilty of misconduct to be barred from the JSC forever.
As you read this, keep in mind that the Constitution prohibits the treatment of citizens differently, viz, you cannot create different categories of MPs, some allowed on the JSC and others not. So if you want to exclude an MP from the JSC, you need to bar them from becoming MP in the first place.
All because someone has or some people have an apprehension that Hlophe will bring an immoral or unethical disposition to the JSC.
That is laughable.
Politicians are invited to the JSC to allow them to bring poli-tics – scheming, tricks and manoeuvres – to the JSC by the Constitution. Yes, you heard that correctly.
In other words, the Hlophe’s detractors are afraid he will bring to the JSC exactly what the constitution invites him to bring as a politician.
If the Constitution wanted people to come to the JSC to pray, it would have invited the clergy, not a politician.
What if Hlophe wants to remove all judges that were horrible to him? Any scheme, even for the benefit of one person is allowed so long as it is done legally. The Scorpions were dissolved legally too.
So Hlophe could lobby the JSC and its subcommittees to remove all judges as long as the law is followed to do so. That would be permissible.
Lobbying for the dissolution of the Scorpions was public so there’s nothing legal that Hlophe could do on the JSC that would not be permissible.
Actually, that is very important: he misconducted himself when he allegedly lobbied his colleagues to make a particular decision. The rules for judges prohibit this. Rules for politicians don’t, so he can now do it to his heart’s content.
What his detractors want to achieve by removing Hlophe from the JSC, is legislated recusal because the ConCourt interpretation of recusal rules in Zuma vs IEC all but deleted the word from legal lexicon.
I won’t go into that save to say that if Hlophe filed a complaint against a judge, he could sit on the tribunal without a problem as long as it cannot be proved that he can’t bring an impartial mind to proceedings and doesn’t have to interpret his previous decision.
This battle against Hlophe has nothing to do with rectitude but everything to do with hate.
Yet that’s why I am so excited.
In South Africa we don’t do the right thing unless to punish someone we hate so I can confidently say that any old racist could chair any parliamentary committee, including on police, and be on the without a problem because the powerful don’t hate racism.
The reason I am happy though I recognise the injustice for Hlophe is that this battle will give us is what we have needed since the beginning – wider rules for admission to parliament.
But be careful what you wish for because this tribunal is a workplace disciplinary committee like any other but for judges. So, the rule that will bar Hlophe from the JSC and eventually to parliament will apply to everyone found guilty of misconduct in the CCMA, other statutory tribunals such as Public Protector and ombudsmen, workplace disciplinary committees, Labour Court and commissions of enquiry.
When those forums find you guilty of misconduct, you would be barred from parliament.
Last year, parliament found six EFF leaders guilty of gross disorderly conduct.
When the “Hlophe rule” takes effect, hopefully, maybe, MPs found guilty of misconduct by parliament will be expelled permanently.
- Mzwandile kaBizokwakhe is a columnist at large who obviously has too much time on his hands to think silly things.
