Nkosikhulule Nyembezi
IT DID not quite shoot people in the EFF headquarters or the Union Buildings yet, but it came pretty close.
According to court papers filed by the Council for the Advancement of the SA Constitution (Casac), the short listing of five candidates sent by the Judicial Services Commission (JSC) to President Cyril Ramaphosa for his consideration must be set aside because the interviews were controversial for their openly political content.
This follows what it terms an attack by JSC commissioner Julius Malema against Justice Dhaya Pillay for her friendship with Minister Pravin Gordhan.
And yet, there are few signs that Malema and the Chief Justice Mogoeng Mogoeng will pay a price for the allegations of asking irrelevant and nonsensical questions that prejudiced candidates at best and; at worst, for using the interviews for naked political score settling.
On the contrary, the JSC’s approval ratings are in rude good health, for transparency and allowing for public ventilation of any concerns in favour or against any candidate during interviews, instead of entertaining them later during the post-interview deliberations of commissioners, when the candidates and the public will no be longer available to participate in or observe the process.
I have a similar experience when I set before by a panel headed by Justice Mogoeng to be interviewed for a position of a commissioner for the Electoral Commission and my name was shortlisted for appointment by the president. I was asked questions that put me under intense scrutiny to which candidates for office requiring impartiality and independence are subjected. I was not offended.
More so because I have gained insight into the workings of panels interviewing for such offices over the years at the University of Cape Town, to some extent through my association with the Democracy and Governance Research Unit, which focuses on the training and career development of judicial officers on the continent.
In a fledgling democracy, the Casac complaint, delivered in tightly prepared court papers, should be devastating for the chief justice and the president.
To have a progressive civil society organisation accuse the JSC of having actively politicised Pillay's interview after Malema accused her of being an “activist judge”, and “unfit for office” because of her friendship with then finance minister Gordhan and just because because in the closing moments of Pillay's interview, Mogoeng remembered that Gordhan had, during an unrelated meeting, asked him how she had done in her 2016 interview for a position at the Supreme Court of Appeal, is unfortunate.
And there are doubts about whether it should be a disqualifying event, triggering a litigation seeking a declaration of unconstitutionality of the process and invalidation of its outcome.
That it doesn't turn on the personalities of the individuals involved and the public mood, as well as something deeper and more troubling about the politics of today that influence the appointment of judicial officers.
As I follow the argument, I keep thinking to myself whether there could ever be an agreement about what constitutes “irrelevant and nonsensical” questions in such settings.
After all, evidence leaders in formal proceedings also line up their questions to include those that might not so much seek to elicit a specific substantive answer, but more to facilitate an engagement that demonstrates the overall character of a witness.
In recent years, many candidates interviewed by the JSC, including my friend and former classmate Carol Sibiya, have fielded questions about their marital or parental status, age, speeding fines, water bills, or political and business connections — a reflection of SA's workforce gender gap, poor enforcement of anti-discrimination laws, and the impact of SA's affirmative action policy.
There are many voices that count in the debate, including those of ordinary citizens.
For decades, the JSC has encouraged interested parties to make submissions in support or against candidates.
It is in that realm that civil society formations such as the Judges Matter and other legal fraternity organisations have been active. Those associated with UCT meticulously compile candidates’ CVs; bibliographies of their judgments, if they are sitting judges or they have acted as judges; their legal submissions in court processes, commissions of inquiry, and to Parliament; their scholarly papers in published academic journals and presented in conferences; and so on.
Out of this information comes a summary of issues flagged in favour of or against their suitability for appointment. This information is packaged to include probing questions and is made available to the JSC and commissioners are actively encouraged to use it in conducting the interviews.
To an untrained eye or a person with some vested interest in the outcome of the appointment process, some of the questions might sound “irrelevant and nonsensical” in such settings.
I have argued so to my academic colleagues after reading through bundles of files prepared for the JSC, only to be educated on the significance of why they are there in the interest of our courts and the administration of justice, as set out in our Constitution. That is when our confidence in the independence of the JSC should matter most in that, after the dust kicked up during the interviews has settled, they make rational decisions that are in the best interest of our country.
I have sympathy for Casac’s argument and wish them the best in this litigation. If at the end of this litigation they should get disappointed that their fusillade has not yet felled the enemy of their friend who is Malema, the EFF leader and their ally as a JSC commissioner, they might reflect on why. It could be that they themselves helped cement the very culture of asking “irrelevant and nonsensical” questions in such settings in which some of their patrons who succeeded to be appointed as judges flourished – and in which the country’s defences against a vicious disease that has exposed the JSC to naked political score settling were fatally eroded.
Nyembezi is a policy analysts and a human rights activist