By Lehlohonolo Lehana.
The Gauteng High Court in Johannesburg has dismissed the MK Party’s last minute bid to halt the Judicial Service Commission (JSC) interviews scheduled for next week.
The JSC is set to begin interviews next Monday to fill vacancies in various courts, including the Constitutional Court (ConCourt) and the Supreme Court of Appeal (SCA).
However, John Hlophe will be excluded from the process after the DA and Corruption Watch successfully obtained an interdict preventing him from participating in the interviews.
The Western Cape High Court granted an interim order pending the outcome of a review application, which seeks to overturn Parliament’s decision to appoint Hlophe to the JSC.
According to the Constitution, the National Assembly must designate six Members of Parliament to represent it on the JSC.
Hlophe, who serves as the MK party’s deputy president and parliamentary leader, was impeached as a judge in February following a gross misconduct ruling by the JSC.
During the proceedings, Advcoate Dali Mpofu argued before Judge Stuart Wilson that Hlophe’s exclusion from the interviews was “unjustified” and had a “constitutional impact”.
“The proximate cause of Hlophe’s exclusion from the sitting next week is the JSC’s decision,” the advocate told the court.
He clarified that the MK party was not seeking to block the interviews as the primary relief in its urgent application.
Instead, the party wants a final order to set aside the JSC’s decision not to postpone the interviews.
“This case cannot be about the alternative relief,” Mpofu said.
Wilson in his judgement said in his view the JSC had acted rationally.
“Further, I think that the JSC’s decision to proceed with its October 2024 sitting did not infringe, even prima facie, any of the MK Party’s or Hlophe’s rights. ” he said.
“A final order generally has three qualities: it is not susceptible to alteration by the court that made it; it is definitive of the parties’ rights; and it disposes of a substantial portion of the relief claimed in the proceedings on which it is made.” 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 judge rejected Mpofu’s argument that the MK party’s leave to appeal application suspended the interdict, stating that the interim order was not final in effect.
“I do not think that this is correct, “he said, adding that the interdict was “merely a temporary restraint”.
“It will be confirmed or discharged when the court that granted it makes a final determination of that issue. The JSC was accordingly correct to conclude that the full court’s order was not suspended by the application for leave to appeal.”
Wilson also emphasised that the high court’s ruling did not affect the JSC appointments of the other five MPs, except for Hlophe.
“Hlophe was restrained from participating in the JSC’s work because he is a former Judge removed from office for gross misconduct. None of the other designees bears that characteristic, “he said.
“For all these reasons, the application is dismissed, with each party paying their own costs,” the judgment concludes.
The MK party released a statement, emphasising that the high court’s ruling was “riddled with glaring legal errors” and “misdirections”.
“Moreover, the ruling poses a serious threat to the doctrine of separation of powers whilst overreaching into the political sphere and tempering with matters of the National Assembly’s powers and privileges.
“The judiciary should not interfere even lightly with decisions reached democratically by elected representatives after thorough debate and voting in Parliament,” the party’s statement reads.