By Lehlohonolo Lehana.
The Constitutional Court has dismissed, with costs, the uMkhonto we Sizwe (MK) political party and John Hlophe’s bid to appeal the interim interdict that barred him from serving on the Judicial Service Commission (JSC).
The apex court said that no case had been made for a direct appeal.
Hlophe was barred from sitting in the JSC in September last year pending the main application to challenge his suitability to serve on the body which appoints and disciplines judicial officers.
The National Assembly’s decision to designate Hlophe to the JSC was challenged in the Western Cape High Court by the Democratic Alliance (DA), Freedom Under Law and Corruption Watch. The cases brought by the DA and the two non-government organisations (NGOs) were heard in tandem in the Western Cape Division of the High Court on 5 and 6 September 2024.
MK Party and Hlophe opposed the applications.
The DA and the two NGOs asked for a ruling from the Western Cape Division of the High Court before the JSC sitting in October.
Subsequently the court granted an interim interdict from participating in sittings of the JSC.
The order was granted pending the court’s decision on three applications asking that the National Assembly’s decision in July 2024 to appoint to the commission be set aside as irrational and unlawful in light of his impeachment for gross misconduct.
Hlophe was found guilty of gross misconduct by the Judicial Conduct Tribunal in April 2021, which was confirmed by the JSC. Parliament voted to impeach him in February last year.
Since then, Hlophe has become a member of parliament for the MK party.
He resigned as JSC commissioner as the commission was conducting the interviews of 51 candidates to fill vacancies at various courts — including four positions for new judges and the judge president position in the Western Cape.
Hlophe’s legal team has maintained that the separation of powers doctrine prevents courts from ruling on the lawfulness of the National Assembly’s decision to designate members of the JSC.According to their argument, the courts have no jurisdiction to interfere in the parliamentary decision-making process.
In December, the high court dismissed an application for leave to appeal against the interim order, prompting Hlophe to head straight to the Constitutional Court.
In February, the high court heard the complainants’ part B application in which they gave the court their reasons why they believe Parliament erred in approving his nomination.
Judgment in that matter is still pending.
While the Constitutional Court on Tuesday accepted the delay in bringing the matter to it, it said that no case had been made for a direct appeal.