OPINION | JSC’s ruling Hlophe a vindication of the strength of SA's democracy

South Africans have more reason to be proud of their constitutional democracy as evidenced by the ruling of judge Stuart Wilson on Saturday in the matter between uMkhonto WeSizwe Party (MKP) and Judicial Services Commission (JSC).

The MKP had sought to put in abeyance the ongoing sitting of the JSC. This move was necessitated by a ruling of the Western High Court that interdicted, MKP leader John Hlophe’s participation from the sittings and activities of the JSC interviewing and recommending judges for various court divisions.

Hlophe was barred from judicial interviews that started on Monday. He has since withdrawn and resigned his membership as MKP designate and parliament’s deployee to the JSC.

The JSC is currently sitting to interview 53 possible judge candidates to various divisions, including judge president of the Western Cape – a position Hlophe held until he was impeached by parliament on the recommendation of the JSC.

In arriving at his decision, Judge Wilson, found that if there was limitation in the rights of Hlophe and the MKP, as was alleged in the submissions, that would have happened on account of what the court had ruled and not on account of the JSC going ahead with its sitting.

“In my view, the JSC acted rationally in refusing to postpone its October sitting. Further, I think that the JSC’s decision to proceed with its October sitting did not infringe, even prima facie, any of the MK Party’s or Hlophe’s rights,” Judge Wilson said.

It is important to understand this ruling, and Hlophe’s subsequent resigning MKP designation as parliament’s deployee to the JSC, as vindication of the strength of SA’s democracy. The court, in essence, jealously guarded against any interference of judiciary processes through alleging conspiracy theories.

The ruling correctly refused to subject a judicial body and its activities (at least the interviewing of judicial officers) to political machinations and misrepresentations. The comments alleging this or that and attacking the person of the judge should literally be ignored as they are nothing but misrepresentation and hot air.

Legitimately, the correct step was to launch an urgent appeal on what the Western Cape High Court had ruled and not embark on a fishing expedition seeking to halt a sitting that has nothing to do with the facts on an individual interdict.

The task of judges remains primarily to interpret the law and never to appeal on emotions or side with popular opinions. Judge Wilson did not deviate an inch from this responsibility.

The fundamental question to answer, maybe even for MKP, is not so much whether the leader of the opposition should form part of the JSC, but can one adjudicate on behalf of an ethical institutional framework body that has reflected negatively on that person’s ethical conduct.

It follows that, if that were to happen, the question becomes: of what value could such participation be, by way of both ethics and counsel. Put differently, is there no other MP the MKP could designate to the parliamentary delegation to the JSC.

Hlophe is a renowned law scholar who distinguished himself in the bench but sadly found himself in a compromised political position. The argument could be stretched to question why a former judge president would allow for such a situation to occur.

In the realm of life, like in the realm of sport, these things need to be refereed independently, and VAR-ed to eliminate any form of bias and subjectivity – both inherent to the human mind.

That aside, parliament did what it is allowed in law, in accepting MKP’s deployment of Hlophe to the National Assembly’s delegation to the JSC and has now correctly accepted Hlophe’s resignation.

There is nothing stopping the MKP from designating any of its 59 MPs to replace Hlophe in the delegation to the JSC. The question of why Hlophe was designated by the MKP in the first instance, ought to be answered, and sadly the answer lies in the politics or ordinarily, interests, of the MKP relative to the stability of our democracy.

The constitutional democracy provides for judges to be impeached. Perhaps, the time is right to make a determination as to what roles are impeached judges allowed to fulfil when it comes to the broader responsibilities and interests of the state that had impeached them.

The order of the Western Cape High Cour will reportedly be appealed but the ruling was victory for democracy in that it delineated parliament (a political institution) and JSC (a judicial institution). This is in keeping with the principles and fundamentals of the three arms of the state, that is executive, the legislature and the judiciary.