By Thabo Mosia
The Judicial Service Commission (JSC) is set to proceed with interviews for 54 judicial candidates, despite a request from the MK Party to postpone the process. The request was made after the Western Cape High Court issued an interim order interdicting Commissioner Dr. Mandlakayise Hlophe from participating in the interviews. This decision came as part of an ongoing legal battle questioning the legitimacy of Dr. Hlophe’s appointment to the JSC.
In a media statement issued on 30 September 2024, the JSC confirmed that it had voted by majority to continue with the interviews, scheduled for 7-16 October, noting that the commission remains properly constituted under the law, despite Dr. Hlophe’s current legal situation. The JSC emphasized that while the MK Party and Dr. Hlophe had applied for leave to appeal the interim order, the court’s ruling did not invalidate Dr. Hlophe’s role as a designated member of the commission. Therefore, the JSC could continue with its proceedings.
The MK Party’s primary argument was that due to the court’s interdict, the commission would be improperly constituted, rendering any decisions made during the interviews unlawful. They further asserted that the National Assembly’s decision to designate Dr. Hlophe to the JSC must be fully reviewed and finalized before the commission could legitimately move forward with its business.
Background and Ongoing Legal Battle
The ongoing legal proceedings surrounding Dr. Hlophe’s appointment have stirred considerable debate. The Western Cape High Court’s interdict specifically prevents Dr. Hlophe from participating in JSC activities until the court has reviewed the legality of his designation. The MK Party contends that this review process should be concluded before any further steps are taken in the selection of judges, given the importance of the positions at stake.
The controversy stems from concerns over whether Dr. Hlophe’s appointment complied with Section 178 of the South African Constitution, which governs the composition and functioning of the JSC. The MK Party argues that until Dr. Hlophe’s appointment is either upheld or nullified by the courts, the JSC is not legally constituted and should refrain from making significant decisions.
Despite this, the JSC has defended its decision to proceed, stating that the court did not set aside the National Assembly’s decision to appoint Dr. Hlophe. As such, the commission believes it can carry out its duties while awaiting the final outcome of the appeal process.
Reactions from Key Stakeholders
The JSC’s decision has drawn mixed reactions from legal professionals, political commentators, and advocacy groups. Some argue that the commission is taking a necessary step to ensure that the judiciary remains fully functional, particularly in light of the vacancies in the Supreme Court of Appeal, Land Court, Labour Court, and various divisions of the High Court.
Others, including supporters of the MK Party, believe that proceeding with the interviews without addressing the legal issues surrounding Dr. Hlophe undermines the integrity of the judicial selection process. They argue that the JSC’s decision could result in further legal challenges and a possible reversal of appointments made during this period.
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