The Judicial Service Commission (JSC) is adamant that Western Cape Judge President John Hlophe will participate in the selection of judges for his division on Friday despite being found guilty of gross misconduct.

Monday night's announcement by JSC spokesperson Dali Mpofu, which followed a meeting between the commission, Hlophe and Western Cape Premier Alan Winde, raises questions about the seriousness with which the JSC regards the findings against Hlophe.

Last Saturday, a Judicial Conduct Tribunal – led by retired judge Joop Labuschagne – found that Hlophe had attempted to sway two Constitutional Court justices to rule in favour of then-ANC president Jacob Zuma, in a crucial 2008 challenge to search warrants used to seize 93 000 pages of corruption trial evidence against him.

The tribunal's report has found that Hlophe embarked on a premeditated campaign to influence justices Chris Jafta and Bess Nkabinde in their evaluation of the case. This included telling Nkabinde that there was "no case" against Zuma and that people would lose their jobs when he became president.

Winde, like Freedom Under Law (FUL) and the Cape Bar Council, had asked that Friday's interviews be suspended, pending the JSC's decision on whether to endorse Hlophe's impeachment on the basis of the tribunal's findings.

But Mpofu told News24 on Monday night, "We've had a meeting and the decision of the JSC is that the interviews will continue on Friday as planned".

"He (Hlophe) is part of the meeting on Friday," he added.

FUL's Nicole Fritz has confirmed that it is considering taking urgent legal action over that decision.

When asked if the JSC was concerned about any such legal challenge, Mpofu simply responded "no".

JSC letter to FUL

The JSC's stance does appear to be at odds with the position it has previously taken on Hlophe's participation in judicial interviews.

The commission told FUL in 2016 there was no barrier against Hlophe participating in the interviews of judges for positions at his court because he had not been found guilty of any wrongdoing or been suspended from his position.

JSC secretary Sello Chiloane wrote to FUL at the time, "The absence of this suspension from office or a guilty verdict by the tribunal, in our view, indicates that there is no bar preventing Judge President Hlophe from carrying out his responsibilities as the Judge President of the Western Cape Division of the High Court."

"And part of his responsibilities is to participate in the selection of candidates for judicial appointment."

Should FUL challenge the JSC decision to invite Hlophe to participate in the Western Cape High Court interviews, despite the guilty finding against him, that letter may come back to bite the commission.

The Cape Bar has also contended that the JSC should use the time allocated for Western Cape High Court judicial interviews to decide on how it would deal with the Hlophe tribunal report, which the Judge President and the Constitutional Court will be asked to respond to before the JSC makes a final determination.

"Such a course will also ensure that the serious findings of the JCT (Judicial Conduct Tribunal) do not taint the judicial appointment process to the Western Cape High Court," the Bar said in a statement.

Dealt with 'like all other matters'

JSC commissioner and Economic Freedom Fighters (EFF) leader Julius Malema responded to that statement with a single line tweet. "It won't happen."

Malema's words appear to underpin an increasingly apparent reality: the JSC is not trying to resolve the Hlophe saga with any sense of urgency.

The Sunday Times has reported that the JSC plans to meet on 4 June to consider the tribunal's findings, and has asked for submissions in the meantime.

Mpofu, meanwhile, maintains the JSC is treating the Hlophe matter "just like any other" and does not feel any pressure to make a decision on that report, which comes after 13 years and multiple legal challenges.

Mpofu said, "What we really want to emphasise is that this is being dealt with like any other matter."

"This is not the first time that this has happened, so there's nothing special. It will be dealt with like all the other matters."

It is also certain that Hlophe will challenge the tribunal. Hlophe enjoys unconditional funding of his legal fees in his battle with the Constitutional Court because of an apparently unprecedented decision by the Zuma administration.

His attorney, Barnabas Xulu, said in a statement Hlophe fundamentally disagreed with the tribunal's findings and would address his concerns in "the appropriate forum" in due course.