The MK Party is facing multiple legal battles. File picture: Timothy Bernard, Independent Newspapers
THE uMkhonto weSizwe (MK) Party is battling multiple court cases, including over the use of its name, over which the ANC claims ownership.
The party is also facing a legal battle over its parliamentary leader John Hlophe’s taking up a seat in the Judicial Service Commission (JSC). The MK Party also wants the recent national election results to be declared null and void, saying there should be a re-run of the polls.
The ongoing battle over the trademark between the ANC and the MK Party started last year in December after former president Jacob Zuma announced his decision to back the MK Party in the elections.
However, in April, the Durban High Court dismissed the ANC’s application to prevent the MK Party from using its name and logo.
On Thursday, the ruling party’s lawyers appeared in the same high court to make an application to seek leave to appeal against the court’s ruling on the MK Party’s trademark.
The ANC said it was seeking leave to appeal against April’s judgment so that it could mount a challenge at the Supreme Court of Appeal.
Elsewhere, the DA has filed an urgent application in the Western Cape High Court to prevent the MK Party’s parliamentary leader John Hlophe from taking up a seat in the JSC. The party claims that it was irrational and inconsistent with the independence of the judiciary for the National Assembly to nominate a removed judge to serve on the JSC and participate in the process for the appointment of judges.
The DA’s application comes after AfriForum filed papers in the Constitutional Court challenging Hlope’s nomination to the JSC.
Hlope was impeached as a judge in February after he was found guilty of gross misconduct for seeking to influence the outcome of a case concerning Zuma.
In their papers, AfriForum said Hlophe’s designation should be declared irrational, unlawful and inconsistent with the National Assembly‘s constitutional duties.
The civil rights group’s chief executive officer Carl Martin Kriel said this raised constitutional questions of great importance involving Parliament’s duty to protect the courts in terms the composition of the JSC as it fulfils its pivotal role in the appointment and removal of judges, the interest of the public in having fit and proper judges, as well as confidence in the legal system.
Kriel said the JSC sits twice a year (in April and October) to nominate judges, and allowing Hlophe to sit on the JSC during October interviews would undermine the public’s trust in the country’s parliamentary and legal system.
He said the other problem with allowing Hlophe as a member of the JCS to partake in the determination of these interviews was that judges might likely apply for his recusal and delay proceedings. This, according to Kriel, follows the widely publicised animosity between Hlophe and acting Judge-President Goliath.
“The legality of the interviews would be called into question and would be susceptible to review, which would further delay the appointments. It is not in the public interest that judicial vacancies in critical positions remain any longer than they should,” said Kriel.
This matter also saw other organisations supporting AfriForum and the DA.
Freedom Under Law also filed an application in the Western Cape High Court. The organisation said the National Assembly was incorrect in its understanding and application for section 178(1)(h) of the Constitution, which gives the National Assembly discretion to select which of its members should serve on the JSC.
It said the Constitutional Court has previously found that bodies appointing candidates to the JSC must take their responsibility seriously and appoint “suitable candidates”, adding that Hlophe was plainly not suitable.
Freedom Under Law added that section 165(4) of the Constitution obliges Parliament to take steps to protect the independence of the judiciary and the public’s confidence in it, and appointing Hlophe was completely at odds with that obligation.
Another organisation, Limpopo Legal Solutions (LLS), said it would also intervene as a second applicant in the matter, adding that the appointment of Hlophe was irrational and made a mockery of the judicial system and made it a subject of public ridicule.
The organisation said this also posed a grave threat to the interview processes of the JSC and the Constitution and should be reviewed and set aside based on the principle of legality, which is an incident of the rule of law.
Meanwhile, the Hola Bon Renaissance Foundation has joined the MK Party in its legal battle seeking to nullify the election outcomes.
The foundation said the citizens were not presented with a list of approved auditors and this made the electoral system non-transparent and unfair. It added that the auditors were not audited and were observed by an independent auditor who oversees the results of the auditors.