JSC rejects MK-Hlophe appeal

The Judicial Service Commission (JSC) has rejected an appeal by the MK party and its chief whip, John Hlophe, for a postponement of the interviews that it is scheduled to conduct from Monday. 

The interviews would continue, it said in a statement Tuesday. 

The interviews are for the 54 shortlisted candidates to fill vacancies in the Supreme Court of Appeal, Land Court, labour court and Labour Appeal Court and various divisions of the high court. 

MK and Hlophe’s appeal followed an interim interdict imposed by the Western Cape High Court preventing Hlophe from participating in JSC processes pending the final outcome of a case for his designation as a member of the commission to be declared unlawful. 

MK also petitioned chief justice Mandisa Maya to postpone the interviews and has indicated it will appeal the ruling of the high court. 

MK requested the JSC to postpone the interviews on the grounds that as a result of the non-participation by Hlophe this would render the JSC not properly constituted as required by the constitution. Therefore decisions the JSC would make would be unlawful and invalid.  

At its meeting on Monday night the JSC decided by majority vote to decline the request for a postponement, taking the view that it was properly constituted “because the court did not set aside the decision of the National Assembly to designate commissioner Dr Hlophe to the JSC and he therefore remains a duly designated member of the JSC and, the judgment also states that the JSC will be able to conduct its business whilst commissioner Dr Hlophe remains under the interdict order”.  

The JSC also decided the applications for leave to appeal the interim interdict order did not preclude it from proceeding with the interviews as scheduled.  

Hlophe, formerly the judge president of the Western Cape division, was the first judge to be impeached in democratic SA’s history. After his impeachment, he joined the MK party as an MP. He was then designated by the National Assembly as one of its six members on the JSC. 

His designation to the JSC was challenged in three separate applications to the high court — by the DA and NGOs Corruption Watch and Freedom Under Law. NGO AfriForum launched its own, separate, application directly to the Constitutional Court. The interdict against him will continue until finalisation of these cases.  

The applicants argue that it was unlawful for the National Assembly to designate an impeached judge to the JSC. 

ensorl@businesslive.co.za