“We are confident that this judgment will be overturned on appeal and that the primary review application, initiated by the DA and Western-sponsored so-called civic organisations like Corruption Watch and Freedom Under Law, will ultimately be unsuccessful,” said MKP spokesperson Nhlamulo Ndhlela.
He described the judgment as erroneous and unjustifiable.
In a letter to Maya, MKP lawyers KMNS said Hlophe's membership of the JSC “arose and/or commenced on July 9 upon his designation as such by the National Assembly in terms of section 178(1)(h) of the constitution”.
“His JSC membership took effect on that date by operation of law,” said KMNS’ Thabo Kwinana.
“In our considered opinion, the automatic effect of the interdict will be to render the JSC to be improperly constituted, more specifically in that:
- Section 178 stipulates the composition of the JSC in peremptory terms and in respect of each of the 23 seats thereof which is carefully balanced and weighted to achieve a specific constitutional purpose.
- More specifically, section 178(1) stipulates the National Assembly 'delegation' within the JSC to consist of at least three members of opposition parties represented in the National Assembly, once again, to achieve the specific constitutional purpose of always having at least a 50-50 split as between the number of ruling party/bloc members and opposition party members. To proceed in a situation where that carefully calibrated constitutional balance in the National Assembly delegation has been skewed against members of opposition parties such that they do not reach the constitutional order.
- Notably and upon a proper reading of section 178(1)(h) it is self-evident that the words 'at least' mean that the six designated members of the National Assembly may theoretically all (100%) come from opposition parties but must at no given time be less than 50% of the members of the ruling party/bloc. Currently the remaining two opposition party members constitute only 40% of the National Assembly delegation. That undesirable situation is exactly what will obtain unless, before October 7 2024: (a) Part B of the High Court application or the AfriForum application pending before the Constitutional Court is heard and decided; (b) The National Assembly designates another person, assuming that it is constitutionally possible to do so, which is denied; and/or (c) the outcome of any application for leave to appeal and/or proceedings in terms of section 18 of the Superior Courts Act.”
Kwinana said it was highly unlikely that Part B of the DA’s application and/or the Constitutional Court application(s) could be finalised within the next four court days before the interviews were held.
“Since the National Assembly is currently in recess until October 4, it is also similarly unlikely that any new designation can be processed, scheduled and effected, even if it was legally competent to do so, which is still denied.” Kwinana said there were no provisions in the constitution for Hlophe to be substituted as suggested by the court in its judgment.
“More importantly for present purposes, the court clearly failed to appreciate or make the obvious distinction between the absence of a ‘quorum’ which is irrelevant and was never raised by the parties and a JSC which is not properly constituted, which was raised but not addressed by the court.
“The ‘absence’ of one member of the JSC can obviously not affect its quorum but that has nothing to do with the present situation where the very membership of a person has been temporarily suspended, nullified and/or reversed with no clear provision made by the court for curing the resultant constitutional defect.”
Kwinana said at issue was not the legal effectiveness or executability of the judgment but its legal impact on the October 7 sitting.
“There is a vast difference between the two, which must not be confused when the postponement decision is being considered.”
He said it seemed inevitable and obvious that no properly constituted JSC could or would be in existence by October 7.
“Any appointments or other decisions taken at such a constitutional deficient and invalid meeting or sitting will therefore be ipso facto tainted with constitutional inconsistency and invalidity.
“This will precipitate a constitutional crisis which will prejudice all those candidates who will have been unconstitutionally ‘appointed’.
“To avoid that situation and/or unnecessary and expensive urgent and/or complex litigation, our client propose the practical, elegant and amicable solution of postponing the sitting until such time that Part B of the high court application and/or the Constitutional Court application(s) under case number 222/24 and/or 253/24 have been finalised alternatively until the National Assembly has determined, one way or the other, whether it is legally empowered to designate another member of the opposition or to put the same question for the vote, whatever the case may be.”
Kwinana said they have been instructed to approach the Constitutional Court to expedite the hearing of the main application and are optimistic that such a request will be accommodated.
“Any other course of action will not assist in avoiding the above-mentioned constitutional crisis, illegality and/or inevitable consequential litigation. It is self-evidently more prudent and preferable to wait and only act once all legal uncertainty will have been removed by the apex court, one way or the other.”
They demanded Maya respond by 11am on Tuesday due to tight timelines, failing which the MKP will take whatever urgent legal steps it deems necessary to avoid the violation of the constitution and/or the political and dignity rights of the party, any of its members, voters and/or supporters, said Kwinana.
TimesLIVE
MK Party asks chief justice to postpone JSC interviews until court's final ruling on Hlophe
Political correspondent
Image: Freddy Mavunda
The MK Party (MKP) has asked the Judicial Services Commission (JSC) to postpone next week’s interviews until the courts have ruled on its parliamentary leader John Hlophe’s membership of the JSC.
On Friday, the Western Cape High Court temporarily interdicted Hlophe from participating in the work of the JSC, the body that interviews and recommends candidates for appointment as judges.
The order meant Hlophe “may miss one or perhaps two sittings of the JSC”, but it would not prevent the JSC from doing its work, the court said.
Hlophe, formerly judge president of the Western Cape division, was the first judge to be impeached in democratic South Africa's history. After his impeachment he joined the MKP as an MP and was then designated by the National Assembly as one of its six members to the JSC.
On Monday, the party announced it would apply for leave to appeal against the high court judgment.
Its lawyers wrote to chief justice Mandisa Maya, who chairs the JSC, requesting she put the business of the commission on hold until the courts have ruled on Hlophe’s membership of the JSC which was challenged by the DA and NGOs Corruption Watch and Freedom Under Law (FUL) in the high court and AfriForum which launched a separate application directly to the Constitutional Court.
“We are confident that this judgment will be overturned on appeal and that the primary review application, initiated by the DA and Western-sponsored so-called civic organisations like Corruption Watch and Freedom Under Law, will ultimately be unsuccessful,” said MKP spokesperson Nhlamulo Ndhlela.
He described the judgment as erroneous and unjustifiable.
In a letter to Maya, MKP lawyers KMNS said Hlophe's membership of the JSC “arose and/or commenced on July 9 upon his designation as such by the National Assembly in terms of section 178(1)(h) of the constitution”.
“His JSC membership took effect on that date by operation of law,” said KMNS’ Thabo Kwinana.
“In our considered opinion, the automatic effect of the interdict will be to render the JSC to be improperly constituted, more specifically in that:
Kwinana said it was highly unlikely that Part B of the DA’s application and/or the Constitutional Court application(s) could be finalised within the next four court days before the interviews were held.
“Since the National Assembly is currently in recess until October 4, it is also similarly unlikely that any new designation can be processed, scheduled and effected, even if it was legally competent to do so, which is still denied.” Kwinana said there were no provisions in the constitution for Hlophe to be substituted as suggested by the court in its judgment.
“More importantly for present purposes, the court clearly failed to appreciate or make the obvious distinction between the absence of a ‘quorum’ which is irrelevant and was never raised by the parties and a JSC which is not properly constituted, which was raised but not addressed by the court.
“The ‘absence’ of one member of the JSC can obviously not affect its quorum but that has nothing to do with the present situation where the very membership of a person has been temporarily suspended, nullified and/or reversed with no clear provision made by the court for curing the resultant constitutional defect.”
Kwinana said at issue was not the legal effectiveness or executability of the judgment but its legal impact on the October 7 sitting.
“There is a vast difference between the two, which must not be confused when the postponement decision is being considered.”
He said it seemed inevitable and obvious that no properly constituted JSC could or would be in existence by October 7.
“Any appointments or other decisions taken at such a constitutional deficient and invalid meeting or sitting will therefore be ipso facto tainted with constitutional inconsistency and invalidity.
“This will precipitate a constitutional crisis which will prejudice all those candidates who will have been unconstitutionally ‘appointed’.
“To avoid that situation and/or unnecessary and expensive urgent and/or complex litigation, our client propose the practical, elegant and amicable solution of postponing the sitting until such time that Part B of the high court application and/or the Constitutional Court application(s) under case number 222/24 and/or 253/24 have been finalised alternatively until the National Assembly has determined, one way or the other, whether it is legally empowered to designate another member of the opposition or to put the same question for the vote, whatever the case may be.”
Kwinana said they have been instructed to approach the Constitutional Court to expedite the hearing of the main application and are optimistic that such a request will be accommodated.
“Any other course of action will not assist in avoiding the above-mentioned constitutional crisis, illegality and/or inevitable consequential litigation. It is self-evidently more prudent and preferable to wait and only act once all legal uncertainty will have been removed by the apex court, one way or the other.”
They demanded Maya respond by 11am on Tuesday due to tight timelines, failing which the MKP will take whatever urgent legal steps it deems necessary to avoid the violation of the constitution and/or the political and dignity rights of the party, any of its members, voters and/or supporters, said Kwinana.
TimesLIVE
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