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CASE NOTE: MKP v JSC
Issued by Daniela Ellerbeck on behalf of the FW de Klerk Foundation on 25/10/2024
Introduction:
In a judgment, that is the latest in a saga surrounding Dr Hlophe and the JSC, the Gauteng Division of the High Court (“the Johannesburg High Court”) refused to grant the uMkhonto weSizwe Party (“MKP”) relief against the Judicial Services Commission (“JSC”). The judgment follows eight days after a full bench of the Western Cape Division of the High Court (“the Cape Town High Court”) interdicted Dr Hlophe from participating in the JSC’s work (see this case note). This current case note will look at the facts, issues and the applicable law the Court referred to. It will then look at the Court’s application of said law to the facts and issues at hand to explain why the Court reached the conclusion it did.
FACTS:
On 9 July 2024, Parliament designated Honourable Dr John Hlophe (“Dr Hlophe”) as one of the MPs to represent Parliament on the JSC. The JSC was scheduled to sit from 7 to 11 October 2024. Dr Hlophe had been impeached for gross judicial misconduct, specifically for attempting to improperly influence two justices of the Constitutional Court to violate their oaths of office. This has led to his removal from the office. However, despite these serious findings, Parliament designated him as one of the JSC’s members.
Cape Town High Court proceedings:
The Democratic Alliance, Corruption Watch and Freedom Under Law filed an urgent application to prevent Dr Hlophe from participating in the JSC’s proceedings. This resulted in a full bench of judges (i.e. three judges) of the Cape Town High Court granting an interim (i.e. pending the final determination of the review) interdict preventing him from doing so, after hearing the matter, because it concluded that there was a compelling case that the designation of an impeached judge to the JSC was irrational and posed a serious threat to judicial independence.
After the Cape Town High Court’s decision, the MKP’s attorney wrote to the JSC saying that the MKP intended to appeal the Court’s decision and asked the JSC to postpone its October 2024 sitting until such time as the:
- Application for final relief before the Cape Town High Court had been determined, or
- Outcome of a similar application, pending at that time before the Constitutional Court, was known, or
- Until Parliament determined whether it is legally empowered to designate another member of the opposition, or
- Until Parliament determined to put the above question to a vote.
After an emergency meeting, the JSC responded to the letter saying:
- It is bound by the Cape Town High Court’s judgment and order;
- The Cape Town High Court had not set aside Dr Hlophe’s designation to the JSC and had accepted that the JSC would lawfully be able to continue its work in Dr Hlophe’s absence;
- The JSC accordingly remains properly constituted and able to proceed with its work in Dr Hlophe’s absence; and
- That the JSC made this decision in light of s18 (2) of the Superior Courts Act, 2013.
The MKP delivered its application for leave to appeal the Cape Town High Court’s order on 30 September 2024.
Johannesburg High Court proceedings:
The MKP also brought this urgent application to the Johannesburg High Court, seeking that the Court order that the JSC’s decision to proceed with its October 2024 sittings to be irrational, unlawful and unconstitutional. Alternatively, the MKP wanted the Court to restrain the JSC from proceeding with its work (until either a final decision about the rationality of its refusal to postpone its October 2024 sitting could be taken, or until the resolution of the controversy surrounding Dr Hlophe’s designation to the JSC).
ISSUES:
The key issues in this case included:
- Whether the JSC’s decision was irrational, unlawful and unconstitutional;
- Whether the Cape Town High Court’s interim interdict was an interlocutory or a final order. If it was an interlocutory order, the MKP’s leave to appeal the application would not suspend it. If it was a final order, the leave to appeal the application would suspend it;
- Whether the JSC was wrong to conclude that it would be properly constituted in Dr Hlophe’s absence.
- Whether the Court should grant the MKP interim relief by restraining the JSC from proceeding with its work.
APPLICABLE LAW:
The primary legal framework involved includes:
- Section 178 of the Constitution which stipulates the membership composition of the JSC.
- Section 18 (2) of the Superior Courts Act, 2013: Essentially states that an interlocutory order’s operation is not suspended pending an appeal decision.
- Industrial Zone (Pty) Ltd v MEC for Economic Development, Environment, Agriculture and Rural Affairs, Gauteng [2023] ZAGPJHC 376: An irrational decision lacks any connection to a lawful reason or purpose. It is based on a brute preference, is taken on a whim, or is so tainted by bad reasons as to be unconnected to any good ones.
- Zweni v Minister of Law and Order of the Republic of South Africa [1993] 1 All SA 365 (A)): The three elements of a final order are that: It is insusceptibility 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.
- Judicial Service Commission v Cape Bar Council 2013 (1) SA 170 (SCA); Acting Chairperson: Judicial Service Commission v Premier of the Western Cape Province 2011 (3) SA 538 (SCA): If the JSC took decisions with the unjustified exclusion of one or more of the constitutionally specified members (who represent interest groups), this would negate the very essence of its constitutional design.
- Hlophe v Judicial Service Commission [2022] 3 All SA 87 (GJ): The absence of an ex officio member of the JSC is not in itself fatal to the validity of the JSC’s proceedings, the absence must also be unjustified.
APPLICATION OF THE LAW:
1. Rationality of JSC’s decision:
The Johannesburg High Court found that the JSC acted rationally in refusing to postpone its October 2024 sitting, because its letter shows that the reasons for its decision are connected to a lawful reason or purpose, was not based on a brute preference or taken on a whim and none of the reasons the JSC gave for refusing to postpone its October 2024 sitting were so tainted by mistakes of fact or of law as to render the decision to proceed irrational.
2. Whether the Cape Town High Court’s decision was a final order:
The JSC’s letter stated that it viewed the decision as an interlocutory order under s18 (2) of the Superior Courts Act, 2013, meaning that MKP’s leave to appeal would not automatically suspend it. The MKP, however, argued that it was final in effect.
The Court found that it was interlocutory, because it did not meet the requirements of a final order, rather, it was merely a temporary restraint pending the outcome of a definitive ruling about whether Dr Hlophe was lawfully designated to the JSC. (I.e. it was susceptible to alteration by the Cape Town High Court (i.e. the court that made it).
3. Whether the JSC was wrong to conclude that it would be properly constituted in Dr Hlophe’s absence:
The Court found that what matters is not simply whether a designee is absent, but whether there is a justification for that absence. Thus, Dr Hlophe’s absence from the October 2024 sitting of the JSC is justified as it was mandated by a court order.
4. Whether the Court should grant the MKP interim relief:
The four-part test for interim interdicts is as follows: First, the MKP must establish a prima facie right by showing that the JSC’s decision was irrational. Second, there must be a reasonable apprehension of harm. Three, the balance of convenience must favour the MKP, as the harm outweighs any inconvenience. Finally, there must be no alternative remedy available.
The Court found that, first, there was no prima facie basis on which to assail the rationality of the JSC’s decision. Second, the JSC could not itself infringe any of the MKP’s rights as long as it acted rationally in light of the Cape Town High Court’s order. Rather it was the Cape Town High Court’s order that limited MKP’s rights.
CONCLUSION
The Court dismissed the MKP’s application, with each party paying their own costs.