Former Western Cape Judge President, John Hlophe. Picture: Gallo Images / Bongiwe Gumede
The Democratic Alliance (DA) has claimed the postponement of the Judicial Service Commission (JSC) interviews, resulting from former judge John Hlophe’s absence, would incur a cost of R3 million.
The uMkhonto weSizwe (MK) party’s urgent application was heard in the Gauteng High Court in Johannesburg on Friday.
The MK party has challenged the JSC’s decision not to accept the party’s request to postpone the interviews set for 7 to 16 October.
The JSC will conduct interviews to fill vacancies in various courts, including the Constitutional Court (ConCourt) and the Supreme Court of Appeal (SCA).
However, Hlophe will be excluded from the process after the DA and Corruption Watch successfully obtained an interdict preventing him from participating in the interviews.
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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.
Advocate Ngwako Hamilton Maenetje, representing the JSC, argued the commission’s decision to proceed with interviewing 51 candidates for various court positions in Hlophe’s absence was appropriate.
Maenetje emphasised that the JSC was obligated to adhere to court rulings.
He countered Advocate Dali Mpofu’s claim that the filing of the MK party’s application for leave to appeal led to the suspension of the interdict.
“It doesn’t automatically suspend the order of the high court. Interim orders don’t have a final effect because the judgments that they render can be reconsidered and changed by the court hearing the application for final relief,” the lawyer told the court on Friday.
“You can’t have an interim interdict in the air; it must be linked to pending proceedings. In that sense, it is interlocutory.”
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Maenetje stated that if that were the case, the party’s request to the JSC would have been for something other than a postponement.
“In fact, they make it clear in the letter [sent to the JSC] that the order and judgment of the high court remain operative,” the advocate continued.
He also contended that it was common cause that Hlophe remains a member of the JSC.
“The October sitting and any decisions that flow from it will not be rendered unlawful even if Dr Hlophe is not able to attend. We make the point that; that is the finding which the High Court in the Western Cape made.”
The lawyer concluded by stating that the JSC was seeking the dismissal of the MK party’s application, but without any order for costs.
Meanwhile, DA’s legal representative, Michael Bishop, argued that the MK party was essentially asking for a review in its application.
Bishop argued that state organs, including the JSC and Parliament, should not cease functioning due to litigants seeking to review court decisions.
He emphasised that the JSC considered both the risks and costs associated with granting the MK party’s request for a postponement.
“There is a cost to the administration of justice because judges will not be appointed, and there is fruitless and wasteful expenditure of R3 million at least. So those are the obvious costs, and that’s what the JSC was doing,” the lawyer said.
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Bishop further stressed that the cost of the postponement was “massive” and, therefore, the JSC’s decision was rational.
“The risk is credibly low in this case. The JSC took was not only rational but correct.”
Judge Stuart Wilson reserved the judgment.
“I anticipate being able to give judgment during the course of tomorrow,” Wilson said.
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