MKP’s parliamentary leader Dr John Hlophe.
Legal experts say that the uMkhonto weSizwe Party’s (MKP) threats of legal action against the Judicial Service Commission (JSC), after it decided to proceed with next week’s judicial interviews without Dr John Hlophe, have a slim chance of success.
Last week, the High Court interdicted the MKP’s parliamentary leader Hlophe, who was formerly a judge and impeached for gross misconduct, from participating in upcoming JSC processes, saying the JSC would continue to function in his absence.
On Monday the MKP wrote to the JSC chairperson, Chief Justice Mandisa Maya, with an urgent request to postpone the interviews, stating that the JSC would not be properly constituted without Hlophe.
Justice Maya sent a letter to the MKP on Tuesday, saying the JSC had met urgently to consider the party’s request and had resolved to proceed with the sitting, saying the JSC considered itself bound by the judgment and order of the Western Cape High Court.
The Chief Justice said the high court’s judgment did not set aside the National Assembly’s decision to designate Hlophe to the JSC and did not impact the composition of the JSC.
The JSC thus remained lawfully composed in terms of the Constitution and “there is no violation of section 178(1) (h)”, Justice Maya said.
MKP spokesperson Nhlamulo Ndhlela yesterday said the party noted the letter from Justice Maya and its legal team “were combing through the details of the letter and what options could be taken on the next step”.
“We will be able to communicate these next steps publicly once our lawyers have reviewed the letter.”
In its correspondence to Justice Maya on Monday, the MKP’s attorney Thabo Kwinana said the decision had been made by the court without any legal basis.
Kwinana said the Constitution required that at least three of the JSC’s delegates from the National Assembly should be from opposition parties.
The MKP has filed an application for leave to appeal against Friday’s judgment, saying the judges had “grossly erred and/or misdirected themselves” in a number of aspects.
The MKP in a statement on Monday said it believed that postponement was the only practical and constitutionally sound solution to the crisis.
Alison Tilley of legal NGO Judges Matter said an interim order was handed down at the Western Cape High Court and the MKP would face difficulty in appealing such an order.
“They might want to bring their own separate substantial application to order the JSC to postpone its hearing but I don’t really understand what that would look like if it is different from appealing the order. If they bring another urgent application now that deals with the same issues, the court we presume would say that it has already made an order in relation to this matter,” Tilley said.
Legal expert Mpumelelo Zikalala said the chances of the MKP being successful in interdicting the JSC from sitting on Monday were slim.
“Justice Maya has said it is not her prerogative to delay the process and her job is to make sure that the vacancies are filled.
“What might be a problem for the MKP if they go on an urgent basis is that the person who was meant to initiate this process is the Speaker (Thoko Didiza). If the Speaker has not said anything, only then can they maybe have a leg to stand on but I don’t see it succeeding,” Zikalala said.
The Mercury
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