Hlophe's lawyers argue interdict barring him from participating in JSC violates separation of powers principle
The impeached judge has now turned to the Constitutional Court for the order to be set aside and replaced with one dismissing the initial application.
MK Party parliamentary leader John Hlophe sworn in as an MP on 25 June 2024. Picture: GCIS
JOHANNESBURG -Lawyers representing uMkhonto weSizwe (MK) Party parliamentary leader, Dr John Hlophe say an interdict temporarily barred him from participating in the Judicial Service Commission (JSC) violated the separation of powers principle.
Last year, Hlophe was interdicted from sitting in the October leg of the JSC interviews, following urgent applications by the Democratic Alliance (DA) and Corruption Watch.
The impeached judge has now turned to the Constitutional Court for the order to be set aside and replaced with one dismissing the initial application.
Lawyers for Hlophe submit that the orders of the Western Cape High Court barring him from exercising his functions as a member of parliament overturn the decision of the National Assembly.
READ: Hlophe turns to ConCourt in bid to appeal ruling that barred him from JSC interviews
They highlighted that the interdict is not based on a finding that the assembly itself violated any of the rules in designating its members in line with the constitution.
It is further argued that it is unlawful to issue an interdict preventing the implementation of the decision of the JSC in the absence of an attack on the constitutionality of the decision-making process of the National Assembly in so far as it designated Hlophe and the other five Members of Parliament to the commission.
They added that interdicting Hlophe from participating in the lawful activities of the JSC is an abuse of judicial authority and that the exclusion of one member from the body for conduct unrelated to that of the commission undermines its constitutional mission.
Lawyers have also bemoaned a punitive cost order
Hlophe's lawyers have also bemoaned a punitive cost order handed down against him.
They have labelled the Western Cape High Court's decision to slap the impeached judge with a punitive costs order as unfair.
Punitive costs are often handed down by a court in its expression of disapproval of a party's conduct.
In papers, attorney, Barnabas Xulu said no litigant should be straddled with such an order for simply expressing a view about a judgment.
He added that there is no judicial impunity from political commentary and free speech and that punishing litigants for expressing their views on the outcome of court proceedings can justifiably be perceived as weaponising judicial discretion and abuse of power.
Xulu pointed out that there should be judicial tolerance for political speech even if the speech is critical of judicial outcomes and has also sought to appeal the costs order.
This submission is made despite MK Party leader, Jacob Zuma already tendering an apology to the extent that they were found to be objectively and independently offensive to the judiciary.