Legal challenge to MK MP Hlophe’s JSC appointment …

There has been outrage in some circles over the National Assembly’s decision to designate as members of the Judicial Service Commission and Magistrates Commission, MPs “who have previously been found guilty of misconduct or have been criticised by courts for ethical breaches, such as Dr John Hlophe and Ms Faith Muthambi”. In this interview with BizNews, Mbekezeli Benjamin of Judges Matter says: “So for us, it is ironic and it is really inappropriate for the people who are scrutinising lawyers to be judges and magistrates are themselves unethical or have been found to have been unethical. Parliament as a body was supposed to be careful and thoughtful in who it puts forward, especially when there are findings by the Judicial Service Commission that said that Dr. Hlophe was guilty of gross misconduct, which is the worst form of misconduct that a person holding judicial office can be found guilty of. They completely ignored those findings and they said he’s suitable to sit on the JSC. So that is the argument that has been made and that case is being filed by the Freedom Under Law NGO.”

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Highlights from the interview

In a recent interview, Chris Steyn discussed the controversy surrounding the appointments to the Judicial Service Commission (JSC) and the Magistrates Commission with Mbekezeli Benjamin from Judges Matter. Benjamin highlighted the problematic designations of former Minister Faith Muthambi and Dr. John Hlophe to these commissions. He argued that their appointments undermine the commissions’ mandate to ensure only ethically sound and fit individuals are appointed as judicial officers, as per Section 174 of the Constitution.

Benjamin emphasized that the JSC, comprising 23 members, must uphold high ethical standards, scrutinizing candidates rigorously. He pointed out the irony and inappropriateness of having individuals with questionable ethics themselves in positions meant to judge the suitability of others. Benjamin criticized Parliament’s decision-making process, stressing that it should ensure the independence and dignity of the courts as mandated by Section 165 of the Constitution.

Judges Matter and other organizations had previously written to Parliament to object to these appointments, but their concerns were dismissed. Benjamin mentioned that Freedom Under Law plans to challenge the decision in court, citing rationality and rule of law principles, referencing a similar case involving Menzi Simelane.

Regarding the designation of Julius Malema of the Economic Freedom Fighters to the JSC, Benjamin noted that while initially controversial, Malema has recently contributed positively, asking pertinent questions about ethics and the application of the Constitution. Benjamin concluded by emphasizing the importance of the JSC’s unique structure and the need for appropriate and qualified members.

Edited transcript of the interview ___STEADY_PAYWALL___

Chris Steyn (00:03.24)

There is outrage in some circles about the designations of certain people to the Judicial Service Commission and the Magistrates Commission. We speak to Mr. Mbekezeli Benjamin of Judges Matter. Good morning, Mr. Benjamin.

Mbekezeli Benjamin (00:18.926)

Good morning, good morning Chris and thank you so much for having us.

Chris Steyn (00:23.464)

Which of those designations do you find problematic?

Mbekezeli Benjamin (00:28.078)

Well, we find problematic the designation of former Minister Faith Muthambi as part of the Magistrates Commission and Dr. John Hlophe as part of the Judicial Service Commission. We believe that both individuals are not suitable to be part of these commissions, particularly if you look at the role that both commissions play in terms of appointing judges and magistrates to our court.  And the key role and function that they play is that that they should check whether the judge or the magistrate or the judicial officer is fit and proper to be appointed as a judicial officer. 

There is a constitutional requirement in terms of Section 174 of the Constitution. It says only suitably qualified and fit and proper people. And what the JSC has said is fit and proper, is someone who is ethical, is someone who has integrity, someone who has not been previously been found guilty of any ethical indiscretion. 

So there shouldn’t be a disciplinary process, even a criminal process that has found that person guilty. So that is what is required of a judicial officer. 

And the people who do the job are the 23 members of the JSC. They sit as a collective to scrutinize – and scrutinize quite seriously – the candidates. And one of the things that the JSC has recently changed is that now, even if you have a judgment that against you, a debt against you, you should disclose it because that is something that goes to your integrity and that is something that they question. So even if you were involved in disciplinary proceedings and you were not even found guilty, but the mere fact that you were involved, both the Judicial Service Commission and the Magistrates Commission do question you on those things. So it is quite clear that for you to be scrutinized by the JSC there is a high ethical standard that is set for you.

Mbekezeli Benjamin (02:27.95)

So for us, it is ironic and it is really inappropriate for the people who are scrutinizing lawyers to be judges and magistrates are themselves unethical or have been found to have been unethical. That is the concern for us and which is why we believe that Parliament as a body should have been careful in taking the decision on who becomes a member of these commissions. 

There is a requirement in terms of the Constitution for Parliament as an institution to be 100% certain that it is protecting and upholding the tradition. Section 165 of the Constitution says that Parliament and any other organ of State should take measures to ensure the independence, the effectiveness and the dignity of the courts. And so for us, that requirement was not followed when Parliament decided to designate these individuals as part of the JSC and the Magistrates Commission.

Chris Steyn (03:27.592)

Now your NGO and five others in fact wrote to Parliament to object to the possibility of Dr. Hlophe being designated. That has now happened. What can you do now?

Mbekezeli Benjamin (03:41.902)

So yes, Judges Matter and six other organisations, we did write to the Speaker to raise the concerns about Parliament’s decision to designate certain individuals. The Speaker wrote back and said, look, there are measures in terms of the Oath of Office and the rules of Parliament that require members of Parliament to uphold certain ethical standards. 

And then she ultimately said she will leave it to the National Assembly as a body to take the decision.  So ultimately it was the National Assembly as a body that took the decision. And for us, that is the concern, right? Because a party can nominate someone, a party that was elected to the National Assembly can nominate anyone to be part of the JSC. But it is the Parliament as a body, Parliament as a collective, that is supposed to take the final decision. 

And when we look at the previous Parliament, the sixth Parliament, the Zondo Commission was very damning to say, you as Parliament failed in your responsibility to uphold accountability, to ensure that democratic institutions are functioning properly. You failed in that responsibility. So our expectation was that Parliament in the seventh Parliament, they would have learned some lessons from the Zondo Commission, they would have learned some lessons from the past and they would be very careful in who they put in these democratic institutions so that those institutions are strong, are credible, are effective in their responsibility. So it was quite disappointing to see Parliament vote to put these people forward. 

Now what should be done at this moment? There is already work, the Freedom Under Law has already indicated that they are taking the decision to court. They will be challenging the decision on the grounds of rationality and the rule of law that is encapsulated in Section One of the Constitution.

Mbekezeli Benjamin (05:41.664)

Now that rationality argument goes around the lines that were similarly made in the case involving Menzi Simelane. You’ll remember that former president Zuma appointed Menzi Simelane as the Head of the National Prosecuting Authority, and at the time the Ginwala Commission had found Menzi Simelane to not have been credible as a witness in those proceedings. And so what the Constitutional Court said is that it was irrational for former president Zuma to appoint Mr. Simelane to be the head of the NPA and completely ignore the findings of the Ginwala Commission who say that he was not credible as a witness. 

So on that same principle, it applies in this situation where Parliament as a body was supposed to be careful and thoughtful in who it puts forward, especially when there is findings by the Judicial Service Commission that said that Dr. Hlophe was guilty of gross misconduct, which is the worst form of misconduct that a person holding judicial office can be found guilty of. They completely ignored those findings and they said he’s suitable to sit on the JSC. So that is the argument that has been made and that case is being filed by the Freedom Under Law NGO.

Chris Steyn (09:18.952)

Now, may I ask you about some other designations? What do you make of the designation of Economic Freedom Fighters Commander-in-Chief, Mr. Julius Malema on the JSC?

Mbekezeli Benjamin (09:30.446)

So yes, firstly, I think we need to understand the role of the members of Parliament on the JSC and the Magistrates Commission. Let’s start with the JSC. The JSC is made up of 23 members. 13 of those members are lawyers and judges. There’s a law academic. And so the majority of the people on the JSC are legally trained people. So the 10 members of Parliament do not necessarily need to be legally trained. They don’t need to be lawyers themselves. Because their role on the JSC is to raise the concerns of the ordinary people who use the courts during the process of the JSC. So the role of their participation in the JSC is really to serve as public representatives. 

And in fact, the current Speaker, Ms Thokozile Didiza , when she was a member of the JSC, she played that role effectively. She’s not a lawyer, but she was very good at asking questions of ethics, of asking questions about gender and the functioning of the court and how they interpret the law in consideration of gender factors. So she played that role well because she understood the role of the Member of Parliament as a public representative on the JSC. 

So similarly, we are not judging Dr. Hlophe on his legal qualifications. Of course, he has a PhD from Cambridge, which is a very high and esteemed qualification, but there is more to it that is required when you are a Member of Parliament. You should be able to ask questions of ethics. 

So Mr. Malema, initially, there was some uproar around his appointment, but initially, in fact, over the last 10 years he served on the JSC, there have been concerns about his behaviour on the JSC, where he used that platform to try and advocate for what are issues that are not really related to someone’s suitability to be a judge. It was more to do with party politics. 

Mbekezeli Benjamin (11:33.984)

But over the last two years, he has changed. He has been much more effective as a commissioner. He’s raised very difficult questions about people’s ethics, ironically. He has questioned candidates on their ethical standards, on their understanding of substantive equality in terms of the Constitution, their understanding of transformation. And one of the interesting things that he raised recently was that transformation is not just about numbers, it’s about the substantive understanding of the Constitution and how someone will apply the Constitution if they are appointed as a judge. And so Mr. Malema has made quite a shift as a member of the JSC. He’s been quite effective and has added some value in how the JSC functions. 

And so the role of a Member of Parliament is important. We believe the JSC as an institution is unique. It is the only body in the whole of the South African State that includes the representation from the judiciary, from the legislature, and from the executive sitting in one room and deciding on an important issue like the appointment of judges. So we do would want that uniqueness to be kept, but we want the right people to be doing the job.

Chris Steyn (12:54.28)

Thank you. That was Mr. Mbekezeli Benjamin of Judges Matters, speaking to BizNews. And I am Chris Steyn. Thank you, Sir.

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