JSC's refusal to postpone judge interviews violating MK Party, Hlophe's right to participate in proceedings

CAPE TOWN - The MK Party says it and its parliamentary leader, John Hlophe, are innocent victims of the alleged irrational conduct of the National Assembly when it approved Hlophe to serve as a commissioner on the Judicial Service Commission (JSC).

Hlophe said that if his designation was deemed questionable on the basis that the National Assembly failed to fully exercise its discretion on the matter, then the same applied to the other five MPs who were also designated.

The party on Wednesday filed an urgent application with the Gauteng High Court to stop the JSC from interviewing for new judges next week.

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The MK Party said that the JSC's decision to go ahead without Hlophe was inconsistent with the Constitution.

The MK Party’s chief whip, Mzwanele Manyi, said that by refusing to postpone next week’s interviews, the JSC was violating both the party and Hlophe's rights to participate in proceedings.

In court papers, Manyi argued that Hlophe's absence would cause an imbalance between ruling party members and the opposition.

Six MPs are designated to represent the National Assembly on the JSC, half of them from the opposition.

The party further said that it did not agree with the JSC's view that Hlophe's absence would not disturb the balance of power on the body nor impact its decision-making.

On Friday, the Western Cape High Court interdicted Hlophe's designation to the body pending a court review of the decision, saying there's a prima facie case that the National Assembly did not fully exercise its discretion on the appropriateness of his nomination.

But in his affidavit, Hlophe argued that the same discretion applied to the other nominated MPs and his impeachment had no constitutional consequences prohibiting him from serving.

Hlophe said that if his designation was later found to be above board, he would have no remedy against an event that had already taken place.

The JSC recommended Hlophe's impeachment as a judge in 2021 for gross misconduct after a complaint that he had tried to influence Constitutional Court judges in a matter involving then-president Jacob Zuma, whose political party he now served.

Among the interviews the JSC will conduct next week are for a new Western Cape High Court judge president, a post held by Hlophe for more than two decades.