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CASE NOTE: DEMOCRATIC ALLIANCE v HLOPHE AND OTHERS
Issued by Alfred Mahkuntsu on behalf of the FW de Klerk Foundation on 11/10/2024
Introduction:
In a judgment handed down on 27 September 2024, the Western Cape Division of the High Court (“the Cape Town High Court”) granted an interim interdict against its former Judge President, Dr Hlophe. The interim interdict prevents Dr Hlophe – now a Member of Parliament (“MP”) for the MK Party – from participating in the Judicial Service Commission (“JSC”). This case note will look at the facts, issues and the applicable law the Court referred to. It will then look at the Court’s application of said law to the facts and issues at hand to explain why the Court reached the conclusion it did.
FACTS:
On 9 July 2024, Parliament designated Honourable Dr John Hlophe (“Dr Hlophe”) as one of the MPs to represent Parliament on the JSC. The JSC was scheduled to sit from 7 to 11 October 2024. Dr Hlophe had been impeached for gross judicial misconduct, specifically for attempting to improperly influence two justices of the Constitutional Court to violate their oaths of office. This has led to his removal from the office. However, despite these serious findings, Parliament designated him as one of the JSC’s members. The Democratic Alliance (“DA”) said his participation would undermine the credibility of the JSC, given his impeachment status.
Thereafter, the DA, along with the Corruption Watch (“CW”) and Freedom Under Law (“FUL”), filed an urgent application to prevent the participation of Dr Hlophe on the JSC. The applicants then argued that allowing an impeached individual to serve on the JSC would create a conflict of interest and undermine the integrity of South Africa’s judiciary. The DA and CW then sought an urgent interim interdict to prevent Dr Hlophe from participating in the upcoming JSC interviews until a full review of the National Assembly’s decision could be conducted.
ISSUES:
The key issues in this case included:
- Whether the High Court had jurisdiction to adjudicate the matter, or if it fell under the exclusive jurisdiction of the Constitutional Court?
- Whether Parliament’s designation of an impeached judge to the JSC was lawful and rational?
- Whether the applicants were entitled to an interim interdict preventing Hlophe from participating in the JSC pending a review of Parliament’s decision?
- Whether Dr Hlophe’s participation in the JSC would cause irreparable harm to the credibility of the JSC’s processes?
APPLICABLE LAW:
The primary legal framework involved includes:
- Section 165(4) of the Constitution: Obligates all organs of state to assist and protect courts to ensure the independence, dignity and effectiveness of the judiciary.
- Judicial Commission of Inquiry into Allegations of State Capture v Zuma 2021 (5) SA 327 (CC).
- Section 167(4)(e) deals with the Constitutional Court’s exclusive jurisdiction and stipulates that only that Court may decide that Parliament or the President has failed to fulfil a constitutional obligation.
- In African Transformation Movement v Speaker of the National Assembly 2022 (4) SA 409 (SCA), the High Court held that it had jurisdiction to review and set aside the Speaker’s decision to decline a request for a secret ballot vote. The applicant’s complaint was procedural and did not involve a failure to fulfil a constitutional obligation. The Court clarified that jurisdictional exclusivity under section 167(4)(e) of the Constitution requires proving a failure by the National Assembly to fulfil a constitutional obligation. The High Court dismissed the application for review, but on appeal, the Supreme Court of Appeal set aside the refusal decision and remitted the matter to the Speaker for a fresh decision.
- Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC).
- Section 178(1)(h) of the Constitution: Provides for the National Assembly to designate six members to the JSC, with at least three being members of opposition parties.
APPLICATION OF THE LAW:
1. Did the Cape Town High Court have jurisdiction?
The Cape Town High Court confirmed the matter fell within its jurisdiction in terms of section 167(4)(e) of the Constitution, rejecting the respondents’ argument that the case fell under the exclusive jurisdiction of the Constitutional Court. To support its view that it was competent to adjudicate the matter, the Court relied on prior case laws, including Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC) and African Transformation Movement v Speaker of the National Assembly 2022 (4) SA 409 (SCA).
The respondents had argued that only the Constitutional Court could decide whether Parliament had failed to fulfil a constitutional obligation. However, the Court clarified that the case involved a challenge to how Parliament exercised its discretion in designating Dr Hlophe to the JSC, rather than a failure to fulfil its obligation.
2. Would Dr Hlophe’s participation in the JSC cause irreparable harm to the credibility of its processes?
The Court considered the application of section 165(4) of the Constitution which requires that the organs of the state uphold judicial independence and dignity. In this regard, the Court agreed with the arguments made by the applicants, noting that the involvement of an impeached judge could undermine the public confidence in the judicial processes, thus violating this constitutional obligation.
3. Was Parliament’s designation of an impeached judge to the JSC lawful and rational?
The Court held that Parliament committed a material error of law by failing to properly exercise its discretion under section 178(1)(h) of the Constitution. Dr Hlophe was already removed from office for misconduct and incompetence. The National Assembly in designating the members of the JSC, should have taken into consideration all the relevant factors or requirements for a fit and proper person. Thus, the National Assembly failed to make a thorough process in designating the representative, which then resulted in an error of law under section 178(1)(h).
4. Were the criteria for an interim interdict satisfied?
In considering if Dr Hlophe should be interdicted from participating in the JSC, pending a review of Parliament’s decision, the Court applied the four-part test for interim interdicts: First, the applicants had established a prima facie right by showing that Parliament’s decision was irrational, as it did not properly consider the implications of Dr Hlophe’s impeachment and the potential damage to the judiciary’s credibility. Second, there was a reasonable apprehension of harm, as Dr Hlophe’s participation in the JSC could irreparably damage the credibility of the judicial appointment process. Three, the balance of convenience favoured the applicants, as the harm to the JSC’s credibility outweighed any inconvenience to Dr Hlophe and the MK party. Finally, there was no alternative remedy available, as the damage to public trust would occur immediately upon Dr Hlophe’s participation in the JSC interviews.
CONCLUSION
The Cape Town High Court granted the interim interdict, preventing Hlophe from participating in the JSC’s proceedings pending the final determination of the review. The Court concluded that the applicants had made a compelling case that the designation of an impeached judge to the JSC was irrational and posed a serious threat to judicial independence. The Court reserved costs for later determination.