By Lehlohonolo Lehana.
Judgment has been reserved in the Umkhonto weSizwe Party urgent application to postpone the Judicial Services Commission (JSC) interviews on Monday, 7th October.
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, John Hlophe will be excluded from the process after the DA and Corruption Watch successfully obtained an interdict preventing him from participating in the interviews.
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 the proceedings, Advcoate Dali Mpofu argued before Judge Stuart Wilson that Hlophe’s exclusion from the interviews was “unjustified” and had a “constitutional impact”.
“The proximate cause of 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.
Advocate Ngwako Hamilton Maenetje, representing the JSC, argued the commission’s decision to proceed with interviewing 51 candidates for various court positions in Hlophe’s absence was appropriate.
Maenetje emphasised that the JSC was obligated to adhere to court rulings.
He countered Mpofu’s claim that the filing of the MK party’s application for leave to appeal led to the suspension of the interdict.
“It doesn’t automatically suspend the order of the high court. Interim orders don’t have a final effect because the judgments that they render can be reconsidered and changed by the court hearing the application for final relief,” the lawyer told the court.
“You can’t have an interim interdict in the air; it must be linked to pending proceedings. In that sense, it is interlocutory.”
DA’s legal representative, Michael Bishop, argued that the MK party was essentially asking for a review in its application.
Bishop argued that state organs, including the JSC and Parliament, should not cease functioning due to litigants seeking to review court decisions.
He emphasised that the JSC considered both the risks and costs associated with granting the MK party’s request for a postponement.
Judge Stuart Wilson reserved the judgment.
Meanwhile the MK Party has reinstated its electoral court challenge to the outcome of the 29 May national and provincial elections and has asked it to order a rerun of the poll.
The party served notice of the application to the Electoral Commission of SA (IEC); chief electoral officer Sy Mamabolo; the speakers of parliament and the nine provincial legislatures; the president and the parties represented in the legislatures and parliament on Thursday.
It wants the IEC declaration set aside and an order compelling President Cyril Ramaphosa to issue a proclamation to hold an election within 90 days of the result being set aside.
It further wants the costs of the application to be paid by the IEC and Mamabolo.
The party withdrew its first application to have the results set aside as it was unable to compile an analytical report it had commissioned on the IEC’s results system in time.
The IEC had in turn attempted to have the court rule on the application in its form at the time, rather than allowing it to be withdrawn.
In his affidavit submitted to the court, MK national organiser Nkosinathi Nhleko was highly critical of the IEC’s actions, saying the electoral body had attempted to force a ruling on the application to create a “legal barrier” to having his party’s analysis of the results presented to the court.
“The application was not ready for hearing and our experts required time to process the information and evidence on which we make this application. It was not only reasonable to withdraw the application but necessary in the interests of justice and the proper administration of justice,” Nhleko said.
“Our case had to be supported by export reports and any attempt to force a hearing on the condition of the original application would have been prejudicial,” Nhleko said.