Impeached judge fails to stop JSC interviews

Judicial Service Commission (JSC) interviews for 55 judge hopefuls are going ahead today despite the Mkhonto we Siswe Party's (MKP) efforts to stop them, notes Legalbrief. The final nail in the MKP’s forlorn hope of having impeached Judge John Hlophe present as one of Parliament’s representatives at the JSC hearings was hammered home by the Gauteng High Court (Johannesburg), which on Saturday dismissed – with costs – the  eleventh-hour bid to block the JSC sittings. The previous week, a full Bench of the Western Cape High Court had interdicted Hlophe from participating in the JSC’s proceedings pending an outcome in various legal challenges to his designation as a member of the JSC in his newly-acquired capacity as an MP. The party subsequently wrote to the JSC requesting a postponement of the interviews but was refused and so turned to the court with an urgent application which was heard by Judge Stuart Wilson, reports News24. They wanted the JSC’s refusal to postpone the interviews declared ‘irrational, unlawful and unconstitutional’ and argued their constitutional rights were in jeopardy. In the alternative, they asked for an interdict preventing the interviews from proceeding until there was a final decision on either Hlophe's standing as a JSC member or the rationality of the JSC's refusal.

Wilson said in his view the JSC had acted rationally, notes News24. ‘Further, I think that the JSC's decision to proceed with its October 2024 sitting did not infringe, even prima facie, any of the MKP’s or Dr Hlophe’s rights. Assuming in the applicants favour that their constitutional rights have been limited, the source of any such limitation was the full court’s order, not the JSC’s conduct in light of that order,’ he said. In requesting a postponement, the MKP had indicated an application for leave to appeal the full Bench's ruling would be lodged and this would automatically suspend its effect, as is the general rule for final orders – a line Advocate Dali Mpofu SC maintained in court. But in refusing the request, the JSC took the position that the order at hand was not final. And Wilson agreed. ‘... It is merely a temporary restraint pending the outcome of a definitive ruling about whether Dr Hlophe was lawfully designated to the JSC,’ he said. ‘The JSC was accordingly correct to conclude that the full court’s order was not suspended by the application for leave to appeal.’ The order was clear in that it only applied to Hlophe. ‘Moreover, no-one asked the full court to consider the legality of any of the other designations,’ Wilson pointed out, according to News24. ‘The issue was simply not before it. Nor does it follow that to impugn Dr Hlophe’s designation is to impugn the designation of the other five National Assembly members. Dr Hlophe was restrained from participating the JSC's work because he is a former judge removed from office for gross misconduct. None of the other designees bears that characteristic.’ 

The JSC said the MKP’s ‘unmeritorious’ bid to interdict it from interviewing 55 potential judges posed a dire threat to the rule of law itself, reports News24. In an affidavit filed at the Gauteng High Court (Johannesburg), JSC secretary Mbali Mondlane argued that the indefinite postponement of these interviews – at a time when SA’s courts were struggling with ‘severe resource constraints’ and desperately needed more qualified judges – could be profoundly damaging to the administration of justice. ‘Dr Hlophe fails to take account of the numerous rights under the Bill of Rights that will be adversely affected by any failure to ensure the proper and efficient administration of justice,’ she said. ‘The rule of law itself will suffer. The timeous appointment of judges to fill vacancies in the courts is critical to the proper administration of justice.’

Mondlane laid bare how courts from the SCA to the Land Court were struggling to cope with the retirement of experienced judges and the growing need for skilled judges to address the demands placed on overburdened courts, notes News24. ‘Given the numerous vacancies in the respective courts, the courts rely on acting judges. This poses numerous challenges. There is a serious challenge to building continuity and expertise amongst judges as reliance is placed on acting judges,’ she said. ‘The number of reserved judgments tends to increase with acting judges, especially since the mechanisms of holding them accountable are not the same as for permanent judges.’ Mondlane has also revealed that the JSC has already spent over R3m preparing for the interviews, which will see a number of judicial candidates and members of the newly-reconstituted JSC flying up to Johannesburg and staying in accommodation that has already been booked and paid for. Should the MKP and Hlophe have their way, that money will have been spent in vain – because, they insist, the JSC must pause its interviews until Hlophe's position in the commission is finally decided.

Last week, a full Bench at the Western Cape High Court interdicted Hlophe from participating in next week’s judicial interviews, which will see multiple candidates being interviewed to fill the Judge President position he occupied for over a decade, before being the first judge in SA history to be removed from office for gross misconduct. The MKP and Hlophe are now seeking to appeal that interim interdict ruling. They insist that if Hlophe is absent from Monday’s interviews, the JSC will not be properly constituted and are seeking to interdict those interviews from proceeding. According to News24, Mondlane says that argument is ‘ill-conceived’ – as the Western Cape High Court did not remove Hlophe from his position as an opposition party MP on the JSC, but instead interdicted him from participating in the interviews until the legal challenges to the National Assembly's designation of him as a commissioner was decided. ‘The fact is that the JSC will be properly constituted in the absence of Dr Hophe in terms of section 178(1)(h) of the Constitution and will be able to take decisions in accordance with section 178(6) of the Constitution,’ she said.