MKP files papers to block JSC interviews
Although the MKP is refusing to back down in its bid to block the JSC from interviewing prospective judges – until the legal battles over impeached Judge President John Hlophe's suitability to serve on the body are finalised – its chances of succeeding are slim, according to legal experts.
In papers filed at the Gauteng High Court (Johannesburg) yesterday morning, the party contends that the JSC's majority decision to proceed with the interviews of several dozen judges next week – despite its demand for a postponement of that sitting – is ‘irrational, unlawful and unconstitutional’.
A News24 report says that according to MKP chief whip Mzwanele Manyi, the party resorted to this legal action after the JSC refused its request to delay next week's interviews, where the judge who will replace Hlophe as Western Cape Judge President will be selected.
While the MKP argues that Hlophe's absence will result in the JSC not being lawfully constituted, Chief Justice Mandisa Maya pointed out that the Hlophe interdict ruling ‘did not set aside the decision of the National Assembly to designate Dr Hlophe as a member of the JSC and does not therefore impact the composition of the JSC’.
‘The JSC thus remains lawfully composed in terms of section 178 of the Constitution and there is no violation of section 178(1)(h),’ she said.
Maya added that, while the High Court had ‘interdicted Dr Hlophe (on an interim basis) from participating in the processes of the JSC, it expressly found that Dr Hlophe's absence would not render the JSC's decisions or processes unlawful’.
The MKP's urgent application is scheduled to be heard tomorrow.
The MKP claims the JSC’s decision to go ahead with the sittings scheduled for 7-10 October was inconsistent with the Constitution, is in violation of Hlophe’s fundamental rights and is in breach of its obligation as an organ of the state to protect, promote and fulfil Hlophe and the MKP’s fundamental rights.
A TimesLIVE report says in its urgent application, the MKP argued that it was untenable and unconstitutional to separate Hlophe and/or MKP from the other five National Assembly members who have been designated to the JSC.
The party claimed Hlophe was being isolated for differential treatment and/or the designated members were being denied the equal protection and benefit of the law as well as the full enjoyment of all rights and freedoms provided in the Constitution.
‘The above-mentioned unfair discrimination and the denial of Dr Hlophe of his opportunity to perform his duties is a direct affront to his self-worth, dignity and/or the right to work,’ said the MKP.
Meanwhile, MKP spokesperson Nhlamulo Ndhlela has said the party’s legal argument is not based on the fact that the JSC will not be quorate.
‘The reasoning provided by the JSC for proceeding is completely baseless.’
Die Burger reports that the MKP’s argument is rather that 50% of the politician members must come from opposition benches.
‘Dr Hlophe is the leader of the opposition. Without his participation the JSC would not be properly constituted. It is not an issue of quorum but of composition.’
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
