DURBAN - While the Judicial Service Commission (JSC) successfully concluded interviews and recommended Supreme Court of Appeal president Judge Mandisa Maya for the position of chief justice of South Africa, much of the debate has been around the composition of the commission.
Journalists, lawyers, and many experts questioned the inclusion of politicians in the processes that involve the selection of judges, in particular EFF leader Julius Malema and former EFF chairperson, Dali Mpofu.
Malema and Mpofu are among the longest-serving members of the JSC, with the former a member since the election in 2014 and the latter appointed in 2017 as a senior counsel.
The dissatisfaction with Malema and Mpofu came particularly after Acting Chief Justice Raymond Zondo was asked in great detail about the State Capture commission’s processes, and Mpofu seemingly asking Gauteng Judge President Dunstan Mlambo about unsubstantiated sexual harassment allegations.
Freedom Under Law director, Justice Johann Kriegler, called for the removal of “tainted” Mpofu and Malema, while questioning their inclusion in the panel of experts.
However, analyst Lukhanyo Vangqa said the composition of the JSC is an “important principle in constitutional democracy”, which provides for the separation of powers, striking a balance in all levels of government.
“The JSC’s composition is an important principle in constitutional democracy. It speaks to the principle of three separate arms of government, with each keeping an eye on the other so that there are checks and balances within the system. The legislature must have oversight over both the judiciary and the executive.
“The executive also has a role to play over the judiciary and legislature so that all three are balanced. It is a modern-day, a philosophical political concept that strikes balance, and allows for politicians to have a role to play in how the judiciary is appointed, due to their oversight role. In hindsight, it is a delicate balance and an important element that must be there,” Vangqa said.
He said the outrage regarding the composition of the JSC, and the line of questioning, was “manufactured and irrational” in that it seeks to illegitimise a perfectly sound exercise.
“When former chief justice Mogoeng Mogoeng appeared before the JSC, he was asked about his judgment with regards to a rape case involving a minor. It is very important for the JSC to understand how judges arrive at decisions so that it can be able to evaluate their jurisprudence and whether or not that type of person should be elevated within the judiciary. What was not acceptable, was the line of questioning that was placed by Dali Mpofu, to Justice Mlambo, on the question of harassment.
“And the only reason why that was not acceptable is because it was not procedurally fair. He should have given Mlambo forewarning to say he was going to ask that kind of question. Even then, it was not entirely unwarranted given the scourge of gender-based violence, sexual harassment and rape in this country. It is an issue that must be discussed with the candidate. So the anger is manufactured and irrational, and wants to cast aspersion on a sound process,” Vangqa said.
Research and advocacy officer at Judges Matter, Mbekezeli Benjamin, said while the diversity in the JSC was welcomed, there should be a decrease in the number of representatives and a commitment to having a code of conduct for commissioners.
“We support the diversity of voices in the JSC. We think that it should keep the lawyers, judges, and politicians. But we would propose a change in the composition in terms of the size while retaining the diversity.
“There also needs to be written rules of engagement and a code of conduct so commissioners behave the way it permits, which would do away with people shouting at each other during an interview. But the most important thing that should be re-imagined about the JSC is the setting of criteria that it uses to decide on the candidates.
“The last days of the JSC sort of descended into a bit of chaos when questions were put to Judge Mlambo about whether the Gauteng High Court favoured Ramaphosa or Zuma and why Justice Zondo never called certain political figures to the State Capture commission.
“Those questions did not help determine whether the two candidates are ready to be chief justice,” Benjamin said.
Daily News