Former Western Cape judge president and uMkhonto weSizwe (MK) Party parliamentary leader, John Hlophe. Picture: Gallo Images/Brenton Geach
Former judge John Hlophe will remain barred from attending the Judicial Service Commission (JSC) interviews after the uMkhonto weSizwe (MK) Party lost its legal battle.
The Gauteng High Court in Johannesburg delivered its judgment on the MK party’s urgent application, just one day after hearing arguments from all parties involved.
The MK party challenged the JSC’s decision not to accept its request to postpone the interviews set to be held from 7 to 16 October.
The Democratic Alliance (DA) had argued in court on Friday that a postponement would have led to wasteful expenditure of R3 million.
The JSC will conduct interviews to fill vacancies in various courts, including the Constitutional Court (ConCourt) and the Supreme Court of Appeal (SCA).
But Hlophe was excluded from the process following the DA and Corruption Watch’s successful bid to obtain an interdict to prevent 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.
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Hlophe was one of the six Members of Parliament (MPs) elected by the National Assembly to the JSC in July 2024.
The move came months after the MK party’s deputy president and parliamentary leader was impeached as a judge.
Judge Stuart Wilson dismissed the MK party’s application on Saturday, ruling that the JSC remains properly constituted and can continue its work despite Hlophe’s absence.
Wilson further stated that the JSC’s decision to deny the postponement was correct and rational.
“An irrational decision lacks any connection to a lawful reason or purpose — one that is based on a brute preference; that is taken on a whim; or that is so tainted by bad reasons as to be unconnected to any good ones.
“The JSC’s position exhibits none of these attributes,” the judgment reads.
READ MORE: JSC legal battle: Mpofu says DA wants to condemn Hlophe ‘for life beyond the grave’
The judge rejected Advocate Dali 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.
“Dr 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 Western Cape High Court has agreed to hear the MK party’s appeal on 1 November, according to the party’s parliamentary chief whip, Mzwanele Manyi.
“This vindicates the MK party position that the postponement of the sitting will not be prolonged.
“Rule of law, not politics, must be allowed to guide the JSC,” Manyi said in a post on X, formerly known as Twitter.
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.
Meanwhile, AfriForum, in a separate case, has taken its challenge to the Constitutional Court (ConCourt).
NOW READ: MK Party calls decision to bar John Hlophe from JSC a ‘lynching’
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