Policy analyst Nkosikhulule Nyembezi adds that in order to assist the seventh administration in turning a new page, the Constitutional Court needs to make clear the requirements for legislators to be eligible for participation in the JSC.
After Hlophe was barred from participating in JSC proceedings on Friday while the National Assembly reviewed its decision to designate him as one of its representatives, Nyembezi stated, “One of the biggest challenges facing South Africa is arguably rebuilding public trust in politicians and the judiciary, and it is crucial to blocking the rise of anti-establishment public sentiment suspicious of the intentions of those opposed to (Umkhonto weSizwe Party’s parliamentary leader) John Hlophe.”
In response to a pressing request by the Democratic Alliance (DA), Freedom Under Law (FUL), and Corruption Watch, the Western Cape High Court rendered a decision.
The National Assembly appointed Hlophe, who was impeached earlier this year, as one of its six JSC delegates.
The petitioners are requesting that the National Assembly’s choice to appoint Hlophe as one of its members to the JSC be reviewed and overturned by the courts.
Judge Johannes Daffue issued his ruling and approved the temporary interdict while the review applications were being processed.
Judge Daffue declared, “Dr. Hlophe is interdicted from participating in the processes of the JSC pending the determination of the merits of the applicant’s review of the National Assembly’s decision to designate the first respondent (Dr. Hlophe) as its representative to the JSC, either in part B of this application, or by the Constitutional Court, whichever occurs first.”
According to the court, it was clear that the National Assembly did not recognize that it had the authority to choose which MPs to nominate to the JSC and did not use that authority.
The court further stated that it was satisfied that the review applications had at least a very strong prima facie case presented for them to succeed. It stated that the applicants had a good argument when they asserted that allowing Hlophe to take part in the JSC’s interviews and deliberations would undermine the credibility of the organization’s procedures.
“This will erode public trust in the JSC.”
supporters of new parties felt strongly that the court’s decision to remove Hlophe from the JSC was a “clumsy own goal for the DA” and that no one should characterize it as a decisive victory because, in the end, he would still vote for or against JSC recommendations presented in Parliament and choose his successor. This was said to be true at a time when public confidence in political and other institutions was fragile and party loyalties were less secure than ever.
“The parties in Parliament who backed Hlophe’s nominations did so on the grounds that he would bring about changes to the JSC that specifically addressed behavior and policy. During the Justice Department budget vote argument, Hlophe made a strong case for himself and his beliefs by emphasizing his legal experience and upholding them. This set him apart from his opponents, whom the MKP disparaged for their lack of integrity and cronyism, Nyembezi added.
The risk is that certain JSC recommendations regarding who should be nominated to be a judge may be tainted, or appear to be.
It’s a complex matter where political influence plays a role in judge nominations. It goes without saying that people and organizations use their human and financial resources to further their goals and objectives. However, public opinion and Parliament act as a buffer against the political power of politicians and certain lobby groups in a functioning democracy, therefore Nyembezi stated that the JSC’s work cannot be overly affected or perceived as unduly influenced.
Karabo Khakhau, the national spokesperson for the Democratic Alliance (DA), hailed the court ruling as a historic win for both the party and the independence of South Africa’s legal system.
“A judge who has been impeached and found guilty of grave misconduct ought not to be a member of the JSC, which is charged with the duty of choosing justices and maintaining the greatest levels of judicial integrity,” stated Khakhau.
According to MKP spokesperson Nhlamulo Ndhlela, the verdict was “regrettable but not surprising” last week.
“The ruling is blatant judicial overreach and ignores the very clause of the constitution that it claims to defend. It attempts to prevent Dr. Hlophe from taking part in the JSC procedure, but Ndhlela stated that neither the injunction remedy nor the vote by Parliament, which approved his appointment in the first place, was used to support it.
Additionally, he stated that until the Parliamentary decision to nominate Hlophe was reexamined and overturned, the JSC could not meet without him.
Ndhlela stated, “After consulting our structures, the progressive caucus, and any other like-minded organizations representing our people, a detailed plan of action will be communicated next week.”
