Since you have taken the time to do some research and applying a full on legal argument to state your case, allow me to respond.

An applicant’s challenge of the proceedings of the JSC is based on various grounds such as the procedure adopted in the hearing of oral evidence, the non-observance by the JSC of its own rules, bias on the part of the JSC and the improper composition of the JSC.

These are the very same grounds Hlophe took the JSC to court

1)Non-OBservance by the JSC of its own rules:
Ignored RULE 4 of the JSC properly to conduct a preliminary investigation

a) HLOPHE stated he was unawre of procedures to apporach another judge on a pending case he was not a panel to, then why did hlophe then go to another judge after being made aware?

(b) find that the complaint has been established and that the respondent
has behaved in a manner which is unbecoming of a judge.

C) That Hlophe flew to Johannesburg to meet the two judges and discuss the Zuma case with them is common cause. That is improper

To approach a judge unaware of his actions, then to be made aware of his actions then to approach another judge aware of his actions, the respondent has behaved in a manner which is unbecoming of a judge. to be unware twice?? come on who you fooling?

Invitation extended to the applicants to make representations was unhelpful and served no purpose as the judiciary as a whole is faced with alligations of fraud & lying

2)bias on the part of the JSC
Andiswa Ndoni – Publicly supported Hlophe, there for came with a predetermined view for the own political agenda

3) The JSC failed to follow procedures on a full investigation and failed to fullow up the full investigation on cross-examination
PAJA act
Kriegler has the right to to take the JSC to court on grounds that the JSC is incompetant by showing the JSC is polluted and broke its own rules and such a matter must now be settled by court as six members of the JSC majority concede that the two versions are irreconcilable. “Clearly, the version of one of them on those disputed issues is not correct,” stated in there findings. Which one is false?

Thus braking the rules of the JSC Act by stating that this doesn’t matter.

It futher cements the incompetance of the judiciary that the only 2 judges on the JSC were of the minority view.

further more “But in and of itself it is not gross misconduct within the meaning of the constitution.” how would they know when the constitution is not clear on the very meaning?

Even if you rely on section 33, it would be prudent to raise a Constitutional matter in the High Courts because the matter will in all probability end up in the Constitutional Court and FUL would not want to be met with a counter-argument based on the Satchwel case. ( ie raising a constitutional matter for the first time in the concourt is not allowed). see other cases in this regard where Yaccob J has warned of this.

Also, should this matter end up in the Constitutional court, the court will be faced with the same problem raised by the Hlope JP matter, ie only five Judges will remain available to adjudicate the matter, where would the short fall of three Judges come from? since the quarum is eight Judges for every matter.

Your proposition that section 39 applies independently of section 38 is misguided and a troubling proposition because rights in the Constitution are interdependent and the Constitution must be read as a whole, see a long list of cases in this regard.No where has the concurt held that rights in the Constituion are free standing. I understand that we might have different experiences with Constitutional litigation and the jurisprudence of the court, but i dont agree with your submissions and frankly they dont make sense at all. You let emotions punctuate your arguments.

What are the many arguments that can be raised against FUL application? i would like to know them for my information, please tell me?

You say that the Glenister case decided in October by Yeksio J is not binding in Pretoria etc. Of course you are right. But note that the Speaker and the Minister of Justice did not even pursue at argument that Glenister, a private citizen, did not have standing to challenge voting protocols in Parliament. How do you explain that?

Finally, you will note that I referred Harold to common law standing, which still applies quite independently on s. 38. See e.g. Wildlife Society 1996 (3) 1095 (Tk.)

There are many arguments that could be raised against FUL’s application. But lack of locus standi is not one of them.

Now Kriegler J wants to rely on the rule of law, also on the allegation that the JSC was not properly constituted. I assume that he would also argue that this cases raises a Constitutional issue within the meaning of section 167(7) of the Constitution as expanded in S V Boesaek (CC) and other cases, because this case might end up in the Concourt, so if you did not raise a constitutional issue, the case can be dismissed on this ground alone. I must remind you that the cases mentioned are binding on any High Court, including the SCA.

Which rights in the Bill of Rights will Kriegler J allege were infriged or threatened? You must remember that the rule of law is found in section 1. To say that threat to the rule of law alone raises a Constitutional matter is not enought, see Carmichelle at para 4 and also see the case of Fredericks and Others at para 17. all these are concourt cases.

@Michael, even when you rely on section 39(2) of the Constituttion, you still need to comply with the cases i mentioned, and i think it would be difficult for Kriegler J and FUL to convince the court that their matter raises a Constitutional issue.

As to section 38(d), before you get there, you must prove that a Right in the Bill of Rights has been infringed or threatened, then, you must be one of the persons listed in section 38(a)-(e). The case you mentioned is not binding on the Concourt, nor is it binding on the High Court in Pretoria, its merely influencial on the High Court of Pretoria.

But are there not limits to our toleration and respect for all views? The people who yell “racist” at Pierre every time he talks about the JSC make reasoned debate very difficult. Trying to engage with them is no more useful than talking to a fascist, a UFO theorist or an AIDS-denialist. I suppose the best thing to do is simply to ignore them. But that takes more maturity than some of us can muster.

I am positive that the foundation that the Professor wished for this blog when he started it was one where opinion and comment would be added with cool and calm reasoning. In recent months this has drastically deteriorated and replaced with angry and vindictive responses. You yourself have succumb to it with your “drooling idiots” comment. This will do nothing more but to cement the polarized position many have taken on certain issues.

An old idiom comes to mind when I think of some of the written exchanges –
The pot calling the kettle black …

and even a bible passage (which doesn’t get used here at all as a reference – for obvious reasons)
Luke 6:41
“Why do you look at the speck of sawdust in your brother’s eye and pay no attention to the plank in your own eye?

I do not understand why it pains some to just self reflect and see that maybe it is they who are “defending the indefensible”.

Alternatively, common law standing could be relied upon, as liberalised under s. 39(2). See e.g. Wildlife Society 1996 (3) 1095 (Tk.)

Can an organisation like FUL assert standing to defend the integrity of the judicial system? Perhaps so, via the broad public interest in legality and the rule of law. I do not re call that anyone seriously contested Hugh Glenister’s standing to challenge the dissolution of the Scorpions, for example.

But even as I write these words I think: Perhaps some contributors to this blog are so exasperated by the Professor’s critics — the drooling idiots who accuse him of racism every time he mentions the JP — that they have resorted to a discourse of crude, heavily sarcastic parody.