Former Western Cape High Court judge John Hlophe Picture: Gallo Images / Foto24 / Bongiwe Gumede
The Judicial Service Commission (JSC) has rejected the uMkhonto weSizwe (MK) party’s request to postpone interviews scheduled to start on Monday, prompting the party to file an urgent application to declare this decision unconstitutional.
Last week, a Western Cape High Court ruling interdicted John Hlophe from participating in the interviews pending the finalisation of the review of the National Assembly’s decision to designate him to the JSC.
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The ruling was in favour of the Democratic Alliance (DA), Freedom Under Law, and Corruption Watch, who challenged Hlophe’s appointment to the JSC.
On Monday, the MK party sent a letter to Chief Justice Mandisa Maya requesting a postponement of the interviews.
The JSC will sit from next Monday to interview candidates to fill vacancies in the Constitutional Court, Supreme Court of Appeal, Land Court, Labour Court, Labour Appeal Court, and various divisions of the High Court.
According to the Constitution, the National Assembly is required to designate six members to represent the Assembly at the JSC. At least half of the National Assembly members must come from the opposition.
The remaining members are Soviet Lekganyane (ANC), Fasiha Hassan (ANC), Glynnis Breytenbach (DA), Julius Malema (EFF) and Athol Trollip (ActionSA).
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The MK party has argued that proceeding with the interviews in Hlophe’s absence will be unlawful.
“Any decision to proceed with the JSC under its current composition would likely trigger further legal challenges and raise serious concerns about the legitimacy of any appointments made by an improperly constituted body,” said the MK party.
However, the JSC has rejected these claims.
“The JSC met on 30 September and decided by majority vote to decline the request for a postponement,” said the JSC.
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“This is because the court did not set aside the decision of the National Assembly to designate Hlophe to the JSC and he therefore remains a member of the JSC.”
However, MK Member of Parliament Mzwanele Manyi says the JSC is missing the point.
“This is a forced removal. It is almost like a fraudulent arrangement,” Manyi told SABC’s Face the Nation.
“MK party is a party that believes in the rule of law. There is nothing that the JSC has done to convince us otherwise. We just had a proper briefing and the lawyers have a fresh mandate to interdict the Monday sitting.”
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Although the MK party and Hlophe have applied for leave to appeal the interim interdict order to the Western Cape High Court, the JSC decided that the application does not preclude it from proceeding with the interviews as scheduled.
Later on Wednesday, the MK party revealed it had filed an urgent application seeking a declaration that the JSC’s refusal to postpone the interviews is unconstitutional for the reasons above.
The party also requested an interdict to stop the interviews next week.
“There is no legal mechanism to remove Dr Hlophe from the JSC between now and next Monday, or at any other time, unless a review court issues an order to that effect,” an MK party statement read.
“The MK party will continue to act within the law to ensure that these interviews do not proceed until the primary review has been finalised.”
The case is set to be heard at 10am this Friday, 4 October, in the Johannesburg High Court.
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