Johannesburg — Western Cape Judge President John Hlophe got more than he asked for from the south Gauteng high court in Johannesburg yesterday when the court ordered the Judicial Service Commission (JSC) to start afresh with hearing evidence in a complaint against him.

The complaint, made in May last year by the judges of the Constitutional Court, was that Hlophe had improperly tried to influence the outcome of pending judgments involving President Jacob Zuma .

The JSC was supposed to begin its hearing on April 1, but it started only on April 7 because of two postponement applications: the first because Hlophe was ill and the second because Hlophe had appointed a new senior counsel.

On April 7, Hlophe's lawyers sought a further postponement because Hlophe was still not well. But this was refused by the JSC and it went ahead with hearing evidence -- in Hlophe's absence.

It was on this basis that Judge Moroa Tsoka yesterday set aside the April hearing. Tsoka said the refusal to grant Hlophe a postponement was unreasonable and infringed on his right to a fair hearing.

Hlophe's complaints about the JSC's process were varied. He said the JSC was improperly constituted because former justice minister Enver Surty had recused himself without designating an alternative; that the JSC was conducting its proceedings in violation of its own rules; and that JSC acting chairman Lex Mpati should have recused himself.

He also complained about the refusal to grant a postponement. But according to what Hlophe was himself asking the court, those complaints were supposed to be addressed at a later date.

Hlophe had asked the court to stop the JSC from going any further in its deliberations on the complaint until his case at the Constitutional Court and this review application in the high court had been finalised.

He asked the court to declare "the entire proceedings of the Judicial Service Commission commencing on July 5 last year to be unlawful" and therefore void. He also asked the court to order the JSC to show why, "on a date to be determined by this court", the JSC's process should not be set aside.

What Hlophe wanted was a declaratory order and to put the JSC proceedings temporarily on hold.

Instead, the court made a finding on one of his complaints and set aside the process finally.

Should the JSC decide to appeal against the judgment, it is likely to argue that it came to court to argue about an interim interdict, not about Hlophe's various grounds of review.

On the other hand, Hlophe got less than he asked for as Tsoka's order only invalidated the JSC's process on April 7 and 8, and not "ab initio" (from the start), as Hlophe had asked.

Nigel Willis, in his minority judgment, even said that the majority order might be bad for Hlophe as it would deprive him of his opportunity to argue that in the April hearing, "an irreversible wrong was perpetrated against him".

But Tsoka distinguished between the unreasonable postponement refusal and Hlophe's other arguments, saying these could still be brought at the JSC.

By implication, this would mean the other arguments could still form the basis for a review application by Hlophe at a later stage.

It appears that the purpose of Tsoka's judgment was to try and find a "just and equitable" way forward for all sides: the JSC process would resume as soon as possible, but in a way that safeguarded Hlophe's rights.

In constitutional matters, judges may make any order which is "just and equitable".

But the unintended effect might be to delay the process further because the JSC must now weigh up whether to appeal against the judgment or to go ahead with the hearing under the cloud of being held to have breached Hlophe's rights.

Judge Tsoka said the refusal to grant Hlophe a postponement was unreasonable and infringed on his right to a fair hearing