Impeached judge John Hlophe at the swearing-in ceremony of MK Party members to parliament at Goodhope Chamber on June 25, 2024 in Cape Town. Photo by Gallo Images/Brenton Geach
Black Lawyers Association (BLA) has come out in defence of impeached High Court judge John Hlophe after his appointment to the Judicial Services Commission (JSC).
The uMkhonto weSizwe (MK) chief whip in parliament was among those the members of the National Assembly (NA) decided to add to the JSC on Tuesday.
The commission serves to interview and select people for appointment as judges and investigate complaints about judicial matters.
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Hlophe’s appointment was strongly opposed by Democratic Alliance (DA) MP George Michalakis during the plenary session, who argued the MK party’s move to nominate Hlophe for the commission was an “exercise of a public power aimed at contributing to the establishment of the very same Judicial Service Commission” where Hlophe had been found guilty of gross misconduct.
Speaking to Newzroom Afrika, BLA president Nkosana Mvundlela said Hlophe had a legal right to be appointed to the JSC.
“For us as the BLA, we are saying that which is allowed by the Constitution must not be for us to say either ‘yay or nay’ to it. It must be based on the basis of the fact that the supremacy of the Constitution is respected and if you respect Section 2 of the Constitution [dealing with equality of persons under law] you must also respect the very same provision of 178 [dealing with the appointment and purpose of the JSC] in the manner in which parliament can do things and I think to that extent it is important for us to remain within the ambit of the law.”
When asked if it was morally justified for an impeached judge to sit on the JSC and interview those who wished to be judges, Mvundlela said it was best not to approach the matter from a moral standpoint, but a legal one.
“It is very easy to want to argue a moral argument [but] moral arguments can have both sides to it,” the BLA president added.
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“The point I am making with you is South Africa is premised on the principle of the law, and that principle of the law is that which guides how things are done.
“That very parliament that found it necessary to recommend him to go to that committee, is expected to act within the moral rectitude of South Africans.
“If the law allows him, who are then as a group of people in South Africa to say that he should not be sitting there?
“The BLA cannot stand and say it is morally wrong if he was found to be unethical by that very same parliament, but now he is sitting in that very parliament, then why shouldn’t we start the argument at that point.”
Hlophe was impeached earlier this year after 305 MPs voted in favour of his impeachment and 27 against it, following a debate riddled with accusations of racism in the judiciary.
His impeachment came after a recommendation of Parliament’s Portfolio Committee on Justice and Correctional Services, following a gross misconduct guilty verdict by the (JSC).
The JSC found Hlophe had acted improperly when he attempted to sway two Constitutional Court justices in favour of MK leader Jacob Zuma.
Hlophe was said to have attempted to overturn warrants used to seize 93,000 pages of corruption trial evidence against Zuma in 2008. He denied the claim.
Additional reporting by Molefe Seeletsa and Vhahangwele Nemakonde.
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