Advocate Dali Mpofu at the Pietermaritzburg High Court on 20 March 2024. Picture: Gallo Images/Darren Stewart
Advocate Dali Mpofu has accused Democratic Alliance (DA) federal chairperson Helen Zille of hypocrisy for opposing former judge John Hlophe’s participation in the Judicial Service Commission (JSC) interviews.
The uMkhonto weSizwe (MK) party’s urgent application was heard in the Gauteng High Court in Johannesburg on Friday.
The MK party is challenging the JSC’s decision not to accept the party’s request to postpone the interviews scheduled for next week.
The JSC is set to begin interviews next Monday to fill vacancies in various courts, including the Constitutional Court (ConCourt) and the Supreme Court of Appeal (SCA).
However, Hlophe will be excluded from the process after the DA and Corruption Watch successfully obtained an interdict preventing him from participating in the interviews.
ALSO READ: JSC legal battle: Mpofu says DA wants to condemn Hlophe ‘for life beyond the grave’
The Western Cape High Court granted an interim order pending the outcome of a review application, which seeks to overturn Parliament’s decision to appoint Hlophe to the JSC.
According to the Constitution, the National Assembly must designate six Members of Parliament to represent it on the JSC.
Hlophe, who serves as the MK party’s deputy president and parliamentary leader, was impeached as a judge in February following a gross misconduct ruling by the JSC.
During Friday’s proceedings, Mpofu argued before Judge Stuart Wilson that Hlophe’s exclusion from the interviews was “unjustified” and had a “constitutional impact”.
“The proximate cause of Dr Hlophe’s exclusion from the sitting next week is the JSC’s decision,” the advocate told the court.
He clarified that the MK party was not seeking to block the interviews as the primary relief in its urgent application.
Instead, the party wants a final order to set aside the JSC’s decision not to postpone the interviews.
“This case cannot be about the alternative relief,” Mpofu said.
READ MORE: MK Party calls decision to bar John Hlophe from JSC a ‘lynching’
The senior counsel argued the JSC, having decided to proceed with the interviews, would be an improperly constituted body.
“The mistake that everybody makes is to conflate two simple things that are not the same, [which is] quorum and constitution or composition.
“We accept, for the avoidance of any doubt, that the quorum will not be affected. What is affected is the proper constitution of the body in our respectful submission.”
Mpofu referenced a 2011 Supreme Court of Appeal (SCA) judgment that favoured Zille during her time as the premier of the Western Cape.
Zille had taken the JSC to court following its 2009 decision to exonerate Judge John Hlophe of gross misconduct — a matter that eventually led to his impeachment.
In her legal challenge, the then-premier argued that the JSC’s decision was invalid because it was not made by the requisite majority.
ALSO READ: MK party slams case challenging Hlophe’s JSC appointment as ‘frivolous’
Furthermore, she had been unable to attend the meeting as she was not informed of its time and location, preventing her from fulfilling her constitutional obligation to participate.
The JSC had initially lost the case in the Western Cape High Court and appealed to the SCA.
Both courts ultimately ruled that the premier was a necessary part of the JSC, rendering the decisions taken in the meeting invalid.
On Friday, Mpofu contended that Zille has since “flip-flopped”, adopting a different position in the Hlophe matter.
“The SCA for good reasons agreed with her, but now she wants the other side of the coin,” the advocate said.
He stressed that the MK party’s legal challenge for the interdict was “stronger” than both Zille’s case and another court case concerning the composition of the JSC.
“In both of those cases, the so-called absent member of the JSC was somebody who was allowed to have an alternate. In this case, there’s no such.”
READ MORE: National Assembly accused of ‘passing the buck’ to MK party over Hlophe’s JSC appointment
Mpofu further pointed out that, unlike other JSC members, the six-member delegation from the National Assembly was not permitted to have substitutes.
“Here, you must attend personally or you must not be there, so that’s a crucial distinction.”
The lawyer further argued that the MK party was merely requesting a postponement of the interviews until a decision on Hlophe’s eligibility for the JSC had been made.
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