Civil rights organisation AfriForum said it has applied to the Constitutional Court asking it to declare that uMkhonto Wesizwe Party (MKP) Parliamentary leader Dr John Hlophe’s appointment is “irrational, unlawful and in conflict” with the National Assembly’s (NA’s) constitutional duty.

Earlier this month, impeached former judge president of the Western Cape Hlophe was nominated by the MKP to serve in the Judicial Service Commission (JSC).

Hlophe is the first judge to be removed from office by the NA, after the JSC found him guilty of dishonesty and gross misconduct. His conviction resulted from his attempts to unlawfully influence two judges of the Constitutional Court, Judges Bess Nkabinde and Chris Jafta, in 2008 to rule in favour of Jacob Zuma in cases before them. 

AfriForum CEO Kallie Kriel noted that the organisation had started legal proceedings to challenge Hlophe’s appointment, highlighting that it had already served its court documents electronically on the Speaker of Parliament Thoko Didiza, Hlophe and the MKP.

Kriel said that it was unthinkable that aspiring judges’ ethics, integrity and suitability to serve as a judge should be assessed by Hlophe as a member of the JSC.

“It is essential that AfriForum fights Hlophe’s appointment to the highest court, because his presence in the JSC seriously undermines the credibility and independence of the judiciary, while it also undermines the rule of law,” he explained.

In AfriForum’s court documents, it is pointed out that the NA, under Article 165 of the Constitution, has a duty to assist and protect the courts, among other things, to ensure the courts’ independence, impartiality, dignity and effectiveness.

He highlighted that by appointing Hlophe, the NA not only “neglected” its constitutional duty, but “acted directly contrary” to the Constitution.

AfriForum argued that the case could be brought directly before the Constitutional Court because it had exclusive jurisdiction over the case and because the case was urgent.

Kriel pointed out that the JSC would conduct interviews with prospective judges in October this year and that it would violate the public’s trust in the judiciary if Hlophe were to be part of the interview process.

The organisation said an application requesting, among other things, direct access to the Constitutional Court would be issued in this court in the coming week.