The Hlophe Interdict: Parliamentary JSC Designations are not Administrative Action
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On Friday, 27th September, the Western Cape High Court handed down judgment in Democratic Alliance v Hlophe, interdicting Dr Hlophe, currently a Member of Parliament (MP) for the uMkhonto we Sizwe (‘MK’) Party, from participating in the processes of the Judicial Services Commission (‘JSC’). The judgment was hotly argued, hotly anticipated, and since delivery has been hotly contested.
The main criticisms relate to separation of powers concerns: courts should be wary of becoming too involved with matters of democratic politics, of replacing decisions of parliament with their own. Or, as the MK Party put it, “[t]he judgment constitutes gross judicial overreach and disregards the provisions of the very constitution it purports to uphold.”
Our discussion is related; in one seemingly innocuous paragraph (para 57), the Court accepts that the National Assembly’s (‘NA’) decision to designate Dr Hlophe to the JSC constitutes Administrative Action (‘AA’) as defined in the Promotion of Administrative Justice Act (‘PAJA’). This is a specific form of public power and allows courts to apply a more intrusive standard of review — without facing such trenchant separation of powers criticism.
Decisions taken under PAJA are measured against the standards of reasonableness and procedural fairness, a higher threshold than the rationality standard typically required for other exercises of public power, which only necessitates a rational connection between the ends sought and the means used to achieve such ends.
The Court gestures to the definition of AA as an explanation for its decision (para 57) — that the NA is an organ of state exercising some form of public power, that this organ took a decision which adversely affected rights, and the decision was not excluded from the definition of AA. The issue is disposed of in a few short sentences. Tellingly, the Court does not engage with the most controversial aspect of the PAJA definition: whether the decision is of an administrative nature. It is this aspect with which we take issue.
What does it mean for a decision to be of an administrative nature? Ultimately, it boils down to the appropriateness of the level of court oversight. Administrative decisions are typically seen as the implementation, rather than the formulation, of policy. They are the decisions putting plans into action. This allows courts to subject them to rigorous scrutiny without the concern of upsetting the delicate balance of powers between the different branches of state and facing counter-majoritarian dilemmas.
On this understanding, it is difficult to see how the decision to designate members of the JSC constitutes an implementation of policy. However, a stronger reason exists for why this decision should not be considered AA — it relates to the constitutional structure empowering and regulating the judiciary. The independence of the judiciary is one of the hallmarks of our constitutional state (Constitution s 165(2)). As such, there are limited means by which the other branches of state can interfere with its processes.
The most important body in this regard is the JSC, which conducts interviews with potential judges, nominates candidates for appointment to the Constitutional Court, and, in effect, appoints candidates to the other courts (s 174). It has a disciplinary function, too. Only after a JSC finding of gross incompetence or gross misconduct can a judge be removed from office, as was the case with Dr Hlophe (s 177(1)(a)).
This scheme allows the other branches of state to have a say in the actions of the judiciary: the JSC is composed of members of the executive, judiciary, parliament, and the legal profession (s 178(1)). Six members of the NA are required, of whom at least three must be members of opposition parties (s 178(1)(h), acting as an important check on the powers of the ruling party. This is an intricate and overtly political balance.
“Good judicial reasoning requires careful evaluation of the nature of the decision and the appropriateness of subjecting it to elevated standards of review at heightened scrutiny.”
The question, then, becomes: to what extent should the courts interfere in the appointment of persons to the oversight body regulating the courts themselves? Who will guard the guards? Is it constitutionally appropriate to allow courts to apply intense scrutiny to the actions of a democratically elected body, tasked, ultimately, with the regulation of the judiciary? We think not. The potential abuse of such power is not hard to imagine (see, for example, Pierre De Vos’ article in anticipation of the review proceedings).
In fairness to the Court, its offhand conclusion that the decision constituted AA is not entirely its own fault. The only point pleaded by counsel was whether the decision fell within one of the exclusions under PAJA, namely whether it was a ‘legislative function of parliament’ (compare the arguments of Trengove SC with those of Mpofu SC). Such hasty conclusions are not out of kilter with judicial practice, the courts treating PAJA and the principle of legality as near interchangeable (the latter acting as a safety net if the court is mistaken about the applicability of the former). But we take issue with this approach — as have others.
There are notable differences between the review of AA and other exercises of public power. In cases concerning decisions of parliament, the court should not avoid the tension between reviewing the decision and allowing the wheels of representative democracy to turn unimpeded. If it could simply treat the designation of MPs to the JSC as AA — a plainly political decision — it runs the risk of opening up similar parliamentary decisions (such as the appointment of MPs to portfolio committees) to inappropriate standards of review.
This would neglect crucial determinations of the level of scrutiny required and the applicable standard. Whilst the principle of legality is not irrelevant to AA, its application cannot be undertaken legitimately and beyond its rationality baseline, without first considering these questions.
Fortunately, this is not the end of the matter as the final interdict is still to be adjudicated (although this is slightly complicated by Dr Hlophe’s subsequent resignation from the JSC). Good judicial reasoning requires careful evaluation of the nature of the decision and the appropriateness of subjecting it to elevated standards of review at heightened scrutiny. It may be that the particular factual matrix, the constitutional values at stake, and the constitutionally unanticipated nature of an impeached judge taking parliamentary office permits its review and setting aside. However, such intrusive interference in the parliamentary domain cannot be the norm.
