Appointing an impeached judge to the JSC fundamentally undermined all the principles it had been created to ensure the legitimacy and effectiveness of the courts and their dignity, independence and efficiency.

That’s according to Freedom Under Law (FUL) which filed its court papers yesterday. 

It said this was particularly so in the case of ‘disgraced’ former Western Cape Judge President John Hlophe who ‘continues to undermine the credibility of the judiciary'.

TimesLIVE reports that FUL executive officer Judith February said the MP still refused to accept the findings made against him – by a Judicial Conduct Tribunal (JCT), the JSC and the National Assembly – ‘and publicly declares that ‘the decision to impeach me was a political one’.

FUL has urgently approached the Western Cape High Court to set aside the decision by the National Assembly to designate Hlophe as one of six MP members of the JSC. It has asked the court to order that the decision be sent back to Parliament for the National Assembly to take it again ‘in accordance with the principles’ set out in the court’s judgment.

Soon after his impeachment in February, Hlophe was made an MKP lawmaker and became its leader in Parliament. He was then designated by the assembly as one of its six members to sit on the body that interviews and recommends candidates for judicial appointment – ‘the very body that found Dr Hlophe to have committed gross misconduct,’ said February.

She said FUL’s legal team was unable find any case in SA or globally that involved facts similar to the present one.

February’s affidavit also referred to the subsequent complaint that was made against Hlophe in 2020 by his deputy, Patricia Goliath.

For that complaint, Hlophe was, before his impeachment, facing a second JCT over several allegations, including that he had assaulted a colleague, Judge Mushtak Parker, in his chambers and had called Goliath a ‘rubbish’ and ‘a piece of shit’. 

TimesLIVE notes that February said Hlophe had employed ‘Stalingrad’ legal tactics to ‘delay the finalisation’ of his misconduct investigation and impeachment, saying they had been ‘particularly damaging to public confidence in the judiciary’.

FUL said the National Assembly’s decision to send him to the JSC was irrational in law, breached the constitutional duty to assist and protect the courts (to ensure their independence and dignity) and was based on ‘a material error of law’. 

The decision was irrational because it was not connected to its purpose, said February.

The ‘overarching purpose’ of the composition of the JSC was ‘to safeguard judicial independence and to ensure public confidence in the appointment process of judges’, she said.

Full TimesLIVE report