It is neither reasonable nor rational to elect Dr Hlophe as a representative of the National Assembly on the JSC

Issued by George Michalakis MP – Chief Whip of the Democratic Alliance
09 Jul 2024 in News

The declaration below was delivered by the DA Chief Whip, George Michalakis MP, in the National Assembly today during the sitting where the House considered the designation of members to the Judicial Service Commission in terms of the Constitution.

We expect to receive a lot of criticism when it comes to the vote because of our decision to force a vote on this matter, given the long-standing practice that when a position is allocated to a party for representation on other forums, it is taken as the prerogative of that party to decide who will represent the National Assembly. We also expect the argument to be made that for as long as an individual is deemed to be fit and proper to serve in the National Assembly, you are consequently fit and proper to represent the National Assembly on other forums.

However, in the current context, there are two reasons why this process should not be followed today.

The first is that it is a matter of public record that Dr Hlophe lost the status as a judge of the High Court in South Africa, as a consequence of a finding of gross misconduct by the Judicial Services Commission. The decision to be taken today is furthermore not merely a political decision, but the exercise of a public power aimed at contributing to the establishment of the very same Judicial Services Commission. In the circumstances it is a legal requirement of the National Assembly to act in a reasonable and rational manner. We are strongly of the view that it is neither reasonable nor rational to elect Dr Hlophe as a representative of the National Assembly on the Judicial Services Commission.

The second reason why Parliament should not elect Dr Hlophe is to be found in the Constitutional obligation which we as members of the National Assembly enjoy to assist and protect the Judiciary in order to ensure its independence, impartiality, dignity and effectiveness.

Even if the majority today holds the view that any person who is fit and proper to be a member of Parliament is fit and proper to serve on the JSC, it must follow that a large number of applicants to be interviewed by the Judicial Services Commission going forward will object to and apply for the recusal of Dr Hlophe, on the basis that the finding of gross misconduct renders him unfit to serve on a body that is to determine the fitness and propriety of others.

This poses the risk of paralysing the JSC and tying it up in endless review proceedings. If we are to assist and support the Judiciary, we must today refrain from exposing the Judicial Services Commission to this risk.