Is Hlophe’s appointment to JSC rational?
Rationality, in law, is a legal test that asks whether there is a connection between a decision and its purpose
This week the first judge ever impeached in democratic South Africa, John Hlophe, now the leader of the MK Party in parliament, was designated by the National Assembly to sit on the Judicial Service Commission (JSC) — the body that interviews and recommends candidates for appointment as judges.
It is an unprecedented factual scenario and one that the framers of the constitution perhaps did not envisage.
It is worth remembering why Hlophe was impeached. The JSC found that he had, in 2008, tried to influence two justices of the Constitutional Court in favour of former president Jacob Zuma. The judgment was widely believed at the time to be critical to Zuma’s political prospects.
To call a spade a spade, he was found to have tried to politically interfere in the work of the highest court in the land — the very antithesis of what it means to be a judge. It is unsurprising legal NGOs are appalled at the thought of him being part of the body that decides whether candidates are fit and proper to be judges and have turned to the courts.
Yet there is no express constitutional or legislative provision that prohibits it. Unlike with the president, an impeached judge is not prohibited by the constitution from holding public office. The constitution also does not disqualify Hlophe from being an MP.
The constitution says six members of the JSC should be designated by the National Assembly, three of whom must be from opposition parties. All must be approved by a majority of the house. The convention had always been that the three biggest opposition parties nominate their choice for the JSC. Their choices, up to now, were always deferred to by the majority parties.
This time around was different. There were objections — the main one came from the DA — and these were ventilated in the house. But the majority carried the day and the motion was passed.
Ideally, who the assembly chooses to send to the JSC is not something courts should decide. The constitution says: “The National Assembly may determine and control its internal arrangements, proceedings and procedures.” The courts have been careful to respect parliament’s internal arrangements, acknowledging what justice Sandile Ngcobo called, in a 2006 judgment, parliament’s “very special role to play in our constitutional democracy”.
But courts may always step in on the grounds of irrationality. All decisions taken by public bodies must be rational, in law. If they are not, they are unconstitutional. In a statement following the decision, Freedom Under Law (FUL) said it would be going to court on this basis.
Rationality, in law, is a legal test that asks whether there is a connection between a decision and its purpose. It is supposed to be an easy test to meet for the decision maker. Describing it in layman’s terms in a public lecture, retired Constitutional Court justice Kate O’Regan called it the “some rhyme or reason” rule. As long as there is some rhyme or reason to what the legislature or executive seeks to do, it will probably pass the rationality test,” she said.
A court would need to ask: what is the purpose of a provision that sends six members of the National Assembly to the JSC, three of whom must be members of opposition parties?
One answer could be that it is to establish a body, made up of stakeholders in the justice system, that collectively determines the fitness of candidates to be judges. Once the JSC is constituted, commissioners are not there in a representative capacity. JSC commissioners all have the same job to do. With such a purpose in mind, it could well be argued that it is irrational to have a commissioner who himself was found unfit to be a judge.
But another answer could be that the purpose of including MPs on the JSC is to represent the concerns and aspirations of the people of South Africa — through their democratically elected representatives. The constitution is very specific on how the JSC must be comprised and there must be a reason for this. This argument would say: if South Africans voted for the MK Party, and it has chosen Hlophe for the JSC, and parliament has approved this choice, like it or not, it is enough to satisfy the rationality requirement.
The Constitutional Court has developed the test for rationality — to say that the process followed in taking a decision must also be rational. Not only must the process be rational, but a court may look at every step in the process. If one step is not rational, and it poisons the whole, a court may find the whole process irrational and set aside the decision.
When Zuma was president and he appointed Menzi Simelane as national director of public prosecutions, the decision was set aside as irrational by the Constitutional Court because of the process followed. Zuma failed to take into account Simelane’s track record: findings had been made against Simelane by an inquiry into the fitness for office of his predecessor, which raised questions about Simelane’s own fitness. He was also facing a disciplinary process. All this was ignored by the president, said the ConCourt.
FUL may ask the court to look at the procedure followed by the National Assembly when it made its decision on Hlophe. Before the motion, the DA objected and the matter was ventilated in the assembly, so it may be hard to argue that Hlophe’s track record was ignored. But in its statement after the decision, FUL took issue with the reasons given by the ANC for supporting the motion.
During the debate, the ANC said it was an established principle that parties “must be permitted to second their own chosen members to specific portfolio committees”. ANC chief whip Mdumiseni Ntuli said in the absence of rules or laws to the contrary, parliament had to live with the rules and practices of parliament as they were.
But FUL said in its statement: “The designation of members of the National Assembly to the JSC is not equivalent to assigning members to portfolio committees within the assembly. The constitution requires organs of state to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility, and effectiveness.”
Speaking to the Sunday Times, FUL’s Judith February said: “FUL is finalising its court papers and other civil society organisations may join the litigation.”