We object: Advocate Mkhwebane and Judge Hlophe are not Chief Justice material
OUTA has submitted formal objections to the President’s Nominations Panel for the new Chief Justice of the Constitutional Court. OUTA objected to the nominations of Advocate Busisiwe Mkhwebane, currently the Public Protector, and of Judge John Hlophe, currently Judge President of the Western Cape.
Both were nominated by the public and made it onto the short list, even if only because they met the minimum requirements.
That such compromised candidates made it onto the short list sent to the President shows that this process, and the minimum requirements, were not properly considered.
OUTA objected to the nomination of Advocate Mkhwebane on the basis that she is not fit and proper for the position of Chief Justice, she lacks judicial competence, and her integrity is highly questionable.
OUTA argued that, notwithstanding the fact that Advocate Mkhwebane is currently the Public Protector, in the performance of her duties for that office, her credibility, competence and understanding of her constitutional duties have been questionable. Numerous courts have reviewed and set aside her reports, citing misinterpretation of the law, bias, exceeding her powers and blatant disregard for the rule of law.
Furthermore, OUTA highlighted that Parliament is currently busy with the process of removing Advocate Mkhwebane from her position as the Public Protector. Although it is the National Assembly’s prerogative to decide ultimately if this process will result in her removal, the mere fact that the independent panel appointed by the Speaker of the National Assembly found that there was substantial prima facie evidence of misconduct and incompetence on her part should be a major cause for concern.
OUTA also highlighted the fact that Advocate Mkhwebane lacks judicial competence, in that she has never held any judicial positions before. The Constitutional Court is the highest court in the land and deals with complex and weighty issues, therefore the Chief Justice must be someone who has, at the least, a track record of writing high quality judgments.
In relation to Judge President Hlophe, OUTA submitted that he had brought the judiciary into disrepute which renders him unfit and improper to occupy the position of Chief Justice.
It is public knowledge that Judge President Hlophe was recently found guilty of gross misconduct by the Judicial Conduct Tribunal for his attempt to improperly influence the Constitutional Court justices in a case involving former President Jacob Zuma. The findings of the Judicial Conduct Tribunal were upheld by the Judicial Service Commission and Judge President Hlophe now faces possible impeachment from the bench.
Judge President Hlophe’s conduct has brought his credibility and integrity into question, but an incumbent of the Office of the Chief Justice must be someone with high integrity and must conduct themselves in a manner that demonstrates high ethical standards.
Neither of these should have made it onto the short list and neither is fit to be Chief Justice.