MK Party throws weight behind Hlophe in wrangle over JSC

uMkhonto weSizwe (MK) party leader, Jacob Zuma has also filed an answering affidavit on behalf of the MK party before the Western Cape High Court, regarding the Democratic Alliance (DA) and Corruption Watch’s application to interdict Parliamentary leader Dr John Hlophe from being a member of the Judicial Service Commission (JSC).

Zuma submits that the DA’s legal challenge is abusive as it seeks to reverse a democratic process, which the party lost in the National Assembly, and that the court is not permitted to do so without encroaching on the exclusive terrain of the legislature.

In his affidavit, Zuma contends that the DA and Corruption Watch failed to meet the requirements of the OUTA test which prescribe that, “the principle of separation of powers demands that an interim interdict against the state can only be granted in the ‘clearest of cases’, or where the applicant had made a ‘strong case’, or if the applicant could show that ‘exceptional circumstances’ existed.”

Therefore, Zuma argues that the parties seeking interim interdicts seek to violate the separation of powers principle by having the superior court encroach on the exclusive terrain of the national legislature whose sanctity is enshrined in Section 57 of the Constitution.

Zuma further attacks the fact that the interim interdict sought in Part A only applies to Hlophe, but not to the National Assembly or the MK party.

Zuma has sought to invoke the Oudekraal principle which states that “If the validity of consequent acts is dependent on no more than the factual existence of the initial act then the consequent act will have legal effect for so long as the initial act is not set aside by a competent court.”

Therefore, Zuma contends that “should the applicants wish to interdict Hlophe from performing his functions as a Commissioner of the JSC, they cannot do so without challenging the National Assembly itself for its decision to accept Hlophe as a Member of Parliament and to designate him as a member of the JSC as it is legally impossible to reach the attendance of the JSC without crossing the bridges of the valid decisions that led to it.”

Dr John Hlophe’s election to the Judicial Service Commission (JSC) continues to ruffle feathers: