The Judicial Service Commission (JSC) must wait until Saturday to know whether its interviews for 27 vacancies across various courts — scheduled to start on Monday — may go ahead.
After a full day’s hearing in the dispute between the MK party and the JSC at the high court in Johannesburg on Friday, Judge Stuart Wilson said he would circulate a written judgment “ome time tomorrow”.
The MK party went urgently to court after the JSC refused to grant a request that the interviews be postponed. The request followed the Western Cape High Court, last week Friday, that interdicted MKP’s leader in parliament John Hlophe from participating in the upcoming interviews.
Hlophe, now an MK party MP, was impeached as judge earlier this year and there is ongoing litigation about whether it was lawful for the National Assembly to send him to the JSC as ones of its six delegates to the commission. The order of the Western Cape High Court was an interim order, interdicting from attending the interviews while the litigation is ongoing.
During debate with counsel on Friday, Wilson suggested that what he was called on to decide was “a very narrow question”: whether the JSC rationally exercised its discretion when it refused to postpone the interviews.
Counsel for the MK party, Dali Mpofu SC, argued that, while the interdict order of the high court was a “fact”, at issue was the “constitutional impact of the order”. He argued the impact was to breach the constitutional rights of the MK party and of Hlophe. “A court order cannot be allowed to do that,” he said.
And while the JSC — “and everyone” — was bound by the order, it would not be in breach of that order if it had decided to postpone the interviews as requested.
Mpofu argued the JSC’s decision was irrational in law because it was based on two “material errors”, one of which was that the JSC remains properly constituted, even if Hlophe did not attend.
Mpofu argued that previous judgments of the Supreme Court of Appeal (SCA) had said, for the JSC to be properly constituted, all its members — each representing different interests and stakeholders in the justice system — should be there. Mpofu quoted an SCA judgment which said the commission “has been created in a structured and careful manner ... Any interpretation of Section 178, which would allow decisions of the JSC to be validly taken with the unjustified exclusion of one or more of these interest groups, would therefore negate the very essence of the constitutional design”.
If the JSC interviews proceeded on Monday, decisions made in these interviews would be open to later challenges, that the interviews had been unlawfully held.
Ngwako Maenetje SC, for the JSC, argued that it was the court’s order, and not the JSC’s decision, that gave rise to the rights breaches alleged by Hlophe and the MK party. But the JSC was bound by the court’s order, he said.
Going back to the reasons given by the JSC when it turned down the request for the postponement, he argued the Western Cape High Court’s order did not affect the composition of the JSC: Hlophe remained a designated member; all the interdict did was prevent him from attending the interviews. Interviews could lawfully go ahead when a commissioner was absent, he said.
The judgments that Mpofu had quoted contained an important qualification: The proceedings would still be lawfully constituted if there was a good reason for someone’s absence. A court order was a good reason, he said.
The JSC’s reasons for refusing a postponement were “not only rational, they were correct”, he said in court.
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