Zuma apology to court on Hlophe judgment no apology, says Zille

MK party president Jacob Zuma has, in court papers, given a qualified apology for the party’s reaction when the Western Cape High Court granted an interim interdict barring the party’s leader in parliament, John Hlophe, from participating in Judicial Service Commission (JSC) proceedings.

A public statement issued in September last year said the judgment was “incompetent, irrational, absurd and blatantly political”. 

This and other public statements by the party and Hlophe have now become part of the back and forth in court papers ahead of part B of the court case, which could see Hlophe permanently barred from the JSC. Part B is due to be heard on February 25 and 26.

After the part A judgment granting an interim interdict, the party’s media statement said the judgment had created a “constitutional stalemate” that was “deliberately created by the incompetent, politically driven and compromised judiciary”.

In a December judgment, refusing leave to appeal, the court said the statement was a “wanton attack on the judiciary” and “cannot and shall not be tolerated”. 

“Describing a judgment in the terms [it did] is deeply offensive, disrespectful and contemptuous. It grossly exceeds the bounds of legitimate comment,” the court said.

Though describing this as a “red-herring issue”, Zuma said — in an affidavit filed in December — that the statement was not intended to scandalise the court. The only thing to be read from it was that the MK party “strongly disagrees with the judgment and is upset at what the judgment represents”.

But, said Zuma, to the extent the media statement “may be ever objectively and independently found to be offensive to any person or institution, an apology is hereby extended to them”. 

“For the record, the MK party makes no apologies for stating the truth that the applications are co-ordinated and part of a political campaign originating with the DA and its fellow-travellers.”

Three separate applications — by the DA, Freedom Under Law and Corruption Watch — were launched to challenge the designation of Hlophe. 

The DA’s Helen Zille hit back in a replying affidavit this week, saying the MK party’s apology was a “non-apology”.

“The MKP has not apologised to the court directly. It has not identified its statements as contemptuous. It has qualified its apology beyond real meaning,” Zille said. The DA was not satisfied with it and “reserves its right to pursue the contempt of court committed by Dr Hlophe and the MKP”.

She said the public statements were not irrelevant as they scandalised the court and went “far beyond legitimate criticism of a judgment”.

The court papers also address issues at the heart of the dispute — whether it was constitutional and lawful when the National Assembly decided to designate Hlophe as one of its six members who sit on the JSC. 

The MK party had “attempted to shift its case” on this, said Corruption Watch in an affidavit filed this week. 

A central argument made by the DA, Freedom Under Law and Corruption Watch is that it had been a mistake for a majority of MPs in the National Assembly to have considered themselves “bound” by the MK party’s nomination of Hlophe.

The correct legal position, they said, was that the National Assembly was required to make its own decision, notwithstanding the nomination by the MK party.

Until Hlophe’s designation in July last year, the National Assembly’s choices for the JSC had been uncontroversial and were passed with little fanfare and no debate. This time, it was different; the DA objected and there was a lengthy debate. It went to a vote and those in favour of Hlophe’s designation — which included the ANC — won the day. 

Zuma said in his December affidavit that the claim that a majority of MPs considered themselves obliged to accept the MK party’s nomination was “a deliberate misrepresentation of the truth”.

“To demonstrate this one simply has to ask the following rhetorical question: if the National Assembly indeed considered itself bound by the MK nomination, what was the purpose of putting that very nomination to the vote?.” 

He said convention, or the way things had been done previously, had been taken into account only “in respect of the nomination decision of MK and not in respect of the designation decision of the National Assembly”. 

But Corruption Watch’s Moira Campbell said this was a shift in the MK party’s case. Quoting from Zuma’s earlier affidavit, Campbell said Zuma had “effectively admitted” that MPs had followed convention when the designation decision was made. 

She said Zuma was now attempting to change course, but his argument was contradicted “by the facts” and “what was stated by various members of the National Assembly before Dr Hlophe’s designation”.

Zuma said the facts demonstrated the opposite: “There is no support for the views falsely attributed to the majority.”