Freedom Under Law (FUL) has formally asked the Judicial Service Commission (JSC) to either delay interviewing potential judges for the Western Cape High Court or to exclude its decision to allow the division's judge president, John Hlophe, to participate in the selection.

The interviews are scheduled for Friday.

The Judicial Conduct Tribunal earlier this month found Hlophe guilty of gross misconduct.

This finding must still be confirmed by the JSC, which has scheduled to meet on June 4 to consider the tribunal decision.

The tribunal delivered its finding after assessing evidence that Hlophe had improperly sought to influence the outcome of a pending Constitutional Court judgment — and had attempted to influence two of the highest court's justices to violate their oaths of office.

In a letter via legal firm Webber Wentzel, FUL said: “The [tribunal] findings are of the most serious character and go to the very heart of the independence of the judiciary in terms of the constitution.”

“It is difficult to envisage a graver situation in the context of a judge.”

FUL criticised the JSC for having taken no steps yet to address the consequences of the tribunal decision, including confirming the decision, referring the matter to the National Assembly and recommending to the president that Hlophe be suspended.

“It is a product of the JSC's failure to fulfil its last-mentioned constitutional obligation to advise the president which has now resulted in judge president Hlophe's continued participation in the JSC's processes,” it said.

The organisation said it had received notice that the JSC believed it would be impracticable to have the Western Cape judicial interviews postponed.

“The reasons set forth by the JSC for the steps it decided to take are difficult to reconcile with its previous conduct and correspondence. The serious findings by the tribunal place this matter in the category of the utmost importance and urgency. The continued failure to deal with this matter properly and expeditiously erodes public confidence in the JSC and the judiciary as a whole; more so given the participation of judge president Hlophe in the judicial selection process,” said FUL.

“Judge president Hlophe, for the sake of the maintenance of the integrity of the judiciary and the JSC's processes, must be deputised in judicial selection by the deputy judge president or another senior judge appointed to act in this capacity.”

The organisation has given the JSC a deadline of 4pm on Thursday to state when it intends to take a decision on the recommendation to suspend Hlophe and to clarify that it intends, at its meeting on June 4, to take a decision on whether to confirm the tribunal decision and refer Hlophe's impeachment to the National Assembly.

The lawyers' letter states: “Our client also respectfully requests that the JSC reconsider its decision to allow judge president Hlophe to participate in the judicial selection process and/or to hold the hearings for the Western Cape judicial vacancies at this stage.”

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