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Tensions of factional battles finding its way into the judiciary

Acting judge president of the KwaZulu-Natal High Court, Mjabuliseni Madondo, was not recommended for the position of judge president. Picture: Gabriel Ellison-Scowcroft/African News Agency (ANA) Archives

Acting judge president of the KwaZulu-Natal High Court, Mjabuliseni Madondo, was not recommended for the position of judge president. Picture: Gabriel Ellison-Scowcroft/African News Agency (ANA) Archives

Published Apr 14, 2022

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By Zelna Jansen

The Judicial Services Commission (JSC) concluded its interviews for vacancies of the post of judge president of the high court and other judicial vacancies in KwaZulu-Natal. Only one candidate, advocate Rob Mossop, was recommended for the vacancy in the Pietermaritzburg High Court.

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Acting judge president of the KwaZulu-Natal High Court, Mjabuliseni Madondo, was not recommended for the position of judge president. This despite Justice Madondo being the only candidate nominated and interviewed for the position.

The process of appointing judges is set out in section 174 of the Constitution. Section 174(6) states that the president must appoint the judges of all other courts on the advice of the JSC. The process followed is that the head of a court shall inform the JSC when a vacancy occurs or will occur.

The JSC will then call for nominations by a specified closing date. A list of nominations will be provided to the JSC. These candidates will be screened by the screening committee and a shortlist will be prepared along with names that should be included for interviews. The screening committee will also state who qualifies for appointment and who has a reasonable prospect of selection for appointment.

Once candidates are interviewed, the JSC will vote and a candidate that receives a majority of votes will be nominated for the appointment by the president. The president ultimately decides who to appoint.

The process to be followed in the appointment of chief justice and deputy chief justice of the Constitutional Court and appointment of judge president and deputy judge president of the Supreme Court of Appeal lies with the president. Although the president decides who to appoint, it is done after consultation with the JSC. It is up the president to take into account the advice of the JSC.

It is therefore rare for the JSC to not make recommendations for the position of judge president for the KZN High Court. It is even more rare that only one person was nominated for this position. All of this pointing towards factional politics in the ruling party permeating the processes and decisions of the JSC.

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If we recall the JSC process of appointing the chief justice of the Constitutional Court, the president ignored the recommendation of the JSC and appointed Justice Raymond Zondo. Was the purpose of nominating one judge to force the president to appoint a particular candidate?

In 2021 it was reported in the media that the ANC regional executive committee accused South Africa’s judges of favouring President Cyril Ramaphosa’s administration while being biased against former president Zuma. It was further reported that the ANC and the government almost lost all cases in the period between 2014 and 2019. This would have been under the administration of Zuma.

There is also the article penned by Minister Lindiwe Sisulu, in which she criticised the justices in the high echelons of the judiciary of being mentally colonised Africans, who enforce the views of those who disposed their ancestors. The judiciary defended itself against these accusations.

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In addition to the above, the judiciary has been accused of becoming immersed in “lawfare”. Essentially, lawfare can be defined as using the law improperly in pursuit of political ends. However, there are those that disagree and have argued that the approach of the courts has been to reinforce constitutional institutions established to support democracy. Despite the courts being drawn into factional battles, it has successfully managed to use legalist reasoning techniques to convert political questions into legal questions.

More recently the Premier of KZN, Sihle Zikalala, in his speech on Human Rights Day, stated that it was time to review the Constitution and move away from a constitutional democracy to a parliamentary democracy. He further said that this will empower the voice of the people and ensure that transformation policies could be implemented and not reversed by the judiciary.

Presently, South Africa’s democracy is founded on the Constitution. The Constitution is based on the principle of separation of powers, wherein each arm of government, the judiciary, legislature and executive are separate and have means of checking each other.

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It is not clear how a parliamentary democracy will avoid the judiciary because the principle of separation of powers with checks and balances are key characteristics of a democracy. Secondly, to change the Constitution, a two-thirds majority vote at a minimum is required. Thirdly, the bill amending the Constitution can be challenged in court for unconstitutionality.

However, it is not impossible for the Constitution to be amended and for Parliament to become supreme above the Constitution. China regards itself as a democracy and it has a one-party rule. The type of democracy employed is usually based on the social structure in which the democracy finds itself. If it is the will of people to move to a parliamentary democracy, then it must be reflected. A parliamentary democracy could therefore work. However, it is not clear how it will avoid the check of the judiciary. Unless, open-minded or like-minded justices are nominated and appointed.

* Zelna Jansen is a lawyer. She is CEO of Zelna Jansen Consultancy.

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