The judge said a final order usually has three qualities: that it is not “susceptible to alteration by the court that made it”, it is definitive of the parties’ rights and that “it disposes of a substantial portion of the relief claimed in the proceedings on which it is made”.
“The [Western Cape] order does none of these things. It is merely a temporary restraint pending the outcome of a definitive ruling about whether Hlophe was lawfully designated to the JSC.
“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 court’s order was not suspended by the application for leave to appeal,” he said.
While the JSC had not sought a costs order in the matter, the DA and Freedom Under Law (FUL) had done so due to a “deeply troubling” press release issued by the MK Party after the Western Cape High Court's judgment.
Wilson said while the release “constituted a gratuitous and wholly unjustified attack” on the court and judiciary in general, the constitution protected freedom of expression — so long as it does not amount to hate speech.
He therefore ruled that “the application is dismissed, with each party paying their own costs”.
The DA has welcomed the ruling, saying it was “another critical win for the judiciary”.
“By rejecting the MK Party’s attempts to delay the JSC interviews, the court has ensured that the process of selecting new judges can proceed without interference from individuals who have been found guilty of gross misconduct.
“The DA remains resolute in defending the independence of the judiciary. Allowing individuals like Hlophe, who has been impeached, to influence the selection of future judges would pose a grave threat to the public’s trust in our legal system and the rule of law,” spokesperson Karabo Khakhau said.
TimesLIVE
MK Party’s urgent bid to halt upcoming JSC interviews fails
Image: Freddy Mavunda/© Business Day
The Judicial Service Commission (JSC) will be able to proceed with interviews to fill 27 vacancies across various courts from Monday after the MK Party's court application to have the interviews postponed failed on Saturday.
The MK Party went urgently to the Johannesburg high court after the JSC refused to grant a request that the interviews be postponed. The request followed an order by the Western Cape High Court, last Friday, interdicting MKP’s leader in parliament John Hlophe from participating in the upcoming interviews.
Hlophe, now an MK Party MP, was impeached as a judge earlier this year and there is ongoing litigation about whether it was lawful for the National Assembly to send him as one of its six delegates to the JSC.
The order of the Western Cape High Court was an interim order interdicting Hlophe from attending the interviews while the litigation is ongoing.
The party, in its application, had asked judge Stuart Wilson to declare the JSC's decision to proceed with interviews on October 7 irrational, unlawful and unconstitutional.
Alternatively, it wanted the court to bar it from doing its work “until a final decision about the rationality of its refusal to postpone its October sitting is taken, or a controversy about the designation of Hlophe is resolved”.
JSC to know on Saturday if interviews may proceed on Monday without Hlophe
Wilson in his ruling, however, said: “In my view, the JSC acted rationally in refusing to postpone its October sitting. Further, I think that the JSC’s decision to proceed with its October sitting did not infringe, even prima facie, any of the MK Party’s or Hlophe’s rights.
“Assuming in the applicants’ favour that their constitutional rights have been limited, the source of any such limitation was the full court’s order, not the JSC’s conduct in light of that order.”
Providing reasons for his ruling, Wilson said he couldn't rule that the JSC's decision to proceed with its work in Hlophe's absence was irrational as an “irrational decision is one that 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.”
Wilson also disagreed with the MK Party's submission that the JSC had “misconstrued the nature” of the Western Cape High Court order, which the party claimed was final and that its leave to appeal application suspended it.
The judge said a final order usually has three qualities: that it is not “susceptible to alteration by the court that made it”, it is definitive of the parties’ rights and that “it disposes of a substantial portion of the relief claimed in the proceedings on which it is made”.
“The [Western Cape] order does none of these things. It is merely a temporary restraint pending the outcome of a definitive ruling about whether Hlophe was lawfully designated to the JSC.
“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 court’s order was not suspended by the application for leave to appeal,” he said.
While the JSC had not sought a costs order in the matter, the DA and Freedom Under Law (FUL) had done so due to a “deeply troubling” press release issued by the MK Party after the Western Cape High Court's judgment.
Wilson said while the release “constituted a gratuitous and wholly unjustified attack” on the court and judiciary in general, the constitution protected freedom of expression — so long as it does not amount to hate speech.
He therefore ruled that “the application is dismissed, with each party paying their own costs”.
The DA has welcomed the ruling, saying it was “another critical win for the judiciary”.
“By rejecting the MK Party’s attempts to delay the JSC interviews, the court has ensured that the process of selecting new judges can proceed without interference from individuals who have been found guilty of gross misconduct.
“The DA remains resolute in defending the independence of the judiciary. Allowing individuals like Hlophe, who has been impeached, to influence the selection of future judges would pose a grave threat to the public’s trust in our legal system and the rule of law,” spokesperson Karabo Khakhau said.
TimesLIVE
READ MORE:
JSC to know on Saturday if interviews may proceed on Monday without Hlophe
MK Party seeks to interdict next week’s JSC interviews
JSC is ‘bound’ by court order and will press ahead with interviews
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