The nomination of Dr (formerly Judge President) Hlophe, Parliamentary leader of the MK party, as its candidate for appointment to the Judicial Service Commission (JSC), verges on contempt for the Constitution and contempt for Parliament and the people of South Africa.
This man is the first judge in South African history, before and after 1994, to be impeached by Parliament, by an overwhelming vote, because of his gross misconduct. The thought of his joining the JSC should be abhorrent to all people who value integrity and honesty in those who are to choose the judges in the future.
Parliament, in terms of the Constitution, has the vote for the representatives, both of the government and the opposition. It is not the nominee of a party, but the vote of the whole of Parliament that is decisive.
There is at least one precedent in Parliamentary history since the adoption of the new Constitution where Parliament overrode the nomination by an opposition party. I am the person who was voted out.
In 1999, when the DP became the Official Opposition, I had served on the JSC for some years. The ANC decided to get rid of me as one of the two representatives of the Opposition, and replaced me with the newly elected Dr Louis Luyt, leading a two-man party in Parliament. The government chief whip at the time, Tony Yengeni, said to me, “This is not against you personally, it’s just politics, Douglas, politics.”
During my service on the JSC, there was one serious failure and error of judgment, which I have admitted on several occasions. I voted for the appointment of Hlophe as the Deputy Judge-President of the Western Cape.
Apart from that lapse of judgment, I once put it to a respected judge appearing before the JSC that he was telling lies. Of course, he was, but this caused a fuss and a furore among certain senior members of the Bar, led by a not particularly distinguished Senior Counsel. I took comfort from the remark of a truly distinguished and leading SC, who told me privately that everyone admired my courage but they had all already formed the same opinion.
The cream of Parliament now sits in the GNU, but among the parties still in opposition, someone like Athol Trollip, although not a lawyer, would be a far better representative of the opposition on the JSC. He, at least, has a reputation for honesty and integrity. There must be others who could be considered.
While we are on the subject, I understand that Julius Malema, the leader of the fourth largest party, the EFF, after losing votes and seats in the election, has been nominated for the JSC. His membership over the past few years has been a disaster. He brought the JSC into disrepute, and the parties, between them, ought to persuade the EFF to nominate someone else who supports the values of the Constitution, and who is not a racist. If the EFF persists with him, a representative of one of the smaller opposition parties should be considered.
If Parliament cares about the JSC, it will take these matters seriously. It must flex its muscles and ensure that the JSC is not degraded by being forced to have among its members people who are guilty of gross judicial misconduct or are racist populists.
Douglas Gibson is a former opposition chief whip and a former ambassador to Thailand.
