Court challenges to his designation to the JSC were ‘hopelessly unmeritorious’, said John Hlophe in papers filed in the Western Cape High Court last week.

As previously reported, the leader of the MKP in Parliament was voted by the National Assembly to be one of six MPs to sit on the JSC.

The Sunday Times notes that the decision has been challenged in court in four separate court cases, three of which were launched in the Western Cape High Court by the DA, Freedom Under Law (FUL) and Corruption Watch.  Hlophe and MKP leader Jacob Zuma filed their answering affidavits in the Cape court.

According to a Mail & Guardian report, Hlophe said he also intended to revive an application before the SCA to overturn the JSC finding that he had committed impeachable gross misconduct. It was abandoned after the state stopped funding his legal fees.

‘As soon as state funding for my legal representation is approved, I intend to file an application reinstating my appeal.’

Hlophe’s counsel said the answering affidavit, which is as yet unsigned, was revised to address the apex court’s decision that his application did not engage the court’s exclusive jurisdiction.

That decision comes before the Western Cape High Court is due to hear applications by FUL, the DA and Corruption Watch to set aside his appointment to the JSC as irrational and unlawful.

The M&G report says in his composite answering affidavit to the three applications, Hlophe said the parties wrongly premised their present challenge on the assumption that his removal was an irrevocable fact.

‘The extant application by the DA assumes that the processes have all been concluded when that simply is not the case.’

Its proper remit, he said, was to review the merits of the decision.

‘I believe that the National Assembly wrongly took the attitude that it was bound by the findings of the majority JSC on the question of whether I had committed gross misconduct, and would not conduct its own independent inquiry on the basis of the obligations it has under section 165(4) of the Constitution,’ he said.

By believing the Constitution limited its inquiry to the appropriate sanction, he continued, it had abrogated its duty. And even on the matter of sanction, it erred in not hearing ‘my side of the evidence’.

Responding to FUL, Hlophe said the case was based on a ‘fundamental misconception’ about what the Constitution said about the consequences of the removal of a judge. Unlike with the removal of a President (who once impeached is prohibited by the Constitution from any public office and who loses his benefits), the Constitution contained no similar provision when it came to impeached judges. Under the Constitution, judges can become MPs and do not lose their benefits, he said.

'The point of judicial impeachment was to protect judicial office, it was not a punishment. Once an impeached judge could become an MP, it followed that an impeached judge could become the President or the Minister of Justice. Both these offices were directly involved in the appointment of judges', he said. 

'The absurdity of the FUL’s reasoning is that if I became a President of the RSA or a Minister of Justice after the election, I would be barred from playing any role in the appointment or discipline of judges,’ he said.

In Zuma’s affidavit, the former President said FUL should have challenged a constitutional provision that allowed an impeached judge to be an MP.

Or, it should have challenged the National Assembly’s long-held practice that allowed opposition parties to nominate candidates of their choice for the JSC.

‘The court cannot simply jump to interdicting Dr Hlophe himself from attending the JSC sitting when all the above decisions or provisions are allowed to remain intact,’ said Zuma. He also targeted the litigants, saying they had not in truth launched separate cases and the litigation was a ‘clearly co-ordinated campaign by right-wing, foreign funded racist organisations’.

The Sunday Times notes that Zuma’s affidavit was a ‘composite’ one responding to all three cases in the Cape court.

He responded to the DA’s argument that the National Assembly’s decision was based on a ‘material error of law’ by the ANC because the ANC thought it was constrained to do what Parliament had always done, which was to accept the nomination of the biggest opposition party.

The case is scheduled to be heard on 5 and 6 September 2024.

Full Sunday Times report

Full Mail & Guardian report