Zelna Jansen is a lawyer and is chief executive of Zelna Jansen Consultancy. File photo.
Zelna Jansen is a lawyer and is chief executive of Zelna Jansen Consultancy. File photo.

Why it’s vital to appoint judges guided by the values of the Constitution

By Opinion Time of article published Aug 21, 2021

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Zelna Jansen

South Africa’s Constitution separates the arms of government into the executive, judiciary and the legislature. The executive runs government, the legislature has to be the voice of the people, make laws and must conduct oversight over the executive. The judiciary enforces the law. The executive and legislative branch are elected political representatives. Based on the proportional representation system, the political party with the most seats runs government and the legislature.

Opposition parties in the legislature do have a voice, however, decisions are adopted through voting and the party with the greater number of seats will no doubt win the vote. The judiciary, on the other hand, must be independent and subject only to the Constitution.

The judiciary is assigned powers of review, to declare administrative and executive conduct and legislation invalid. These extensive and broad review powers relating to legislation and executive acts mean that other arms of government must obey the rulings of the judiciary. The judiciary is therefore an important arm in government. It is therefore imperative to appoint judges that are guided by the progressive values of the Constitution and the protection of human rights, and to not recommend judges that will abandon the Constitution to rule in favour of government.

Section 178 of the Constitution established the Judicial Services Commission (JSC). It is not an executive body. The main function of the JSC is to recommend judges for appointment to the bench. When the JSC convenes for this purpose, it’s commissioners consists of a Chief Justice, President of the Supreme Court of Appeal, Judge President, a Cabinet member responsible for Justice, two practising advocates, two practising attorneys, a teacher of law, six people from the National Assembly of which three must be opposition, four permanent delegates from the National Council of Provinces (NCOP), and four people designated by the president as head of the National Assembly. At least 11 out of the 23 commissioners of the JSC will be members of the governing party.

The JSC held judicial interviews in April this year and made recommendations for judicial appointments to the president. However, the Council for the Advancement of the South African Constitution (Casac) launched an application in the Johannesburg High Court challenging the constitutionality of the JSC’s interviews for candidates to fill vacancies at the Constitutional Court.

Casac alleged that the manner of questioning of some of the candidates went beyond the bounds of what is permissible to determine the fitness and propriety of the candidates. Some of the questioning was irrelevant and aimed at ambushing the candidates, resulting in them suffering severe prejudice.

It is further alleged that some of the questions were not vetted for appropriateness and that the Chief Justice should have intervened in the questions posed, but did not. The failure on the part of the Chief Justice to intervene in some of the questions posed constituted a failure on the part of the JSC to ensure a rational and fair process towards certain candidates.

The contentious issue of race was also raised. Casac argued that while the Constitution mentions the transformational criterion, it demands as the primary and essential requirement that appointees be appropriately qualified. Clearly, within the JSC there are commissioners who want transformation to be a priority and commissioners that want appropriately qualified criteria to be prioritised. One would expect that all judges shortlisted for the Constitutional Court will very likely be suitably and appropriately qualified.

Casac further highlighted that the manner, tone and questions towards Judge Dhaya Pillay were politicised and that questions relating to a meeting between Chief Justice Mogoeng Mogoeng and the former Minister of Finance, Pravin Gordhan, should not have been asked during the interview. From Casac’s application, it is obvious that many of the questions directed to the judge and many other judges were inappropriate.

However, in assessing the fitness of a judge, how a judge conducts him or herself is an indication of their fitness to hold such an office. Gordhan, met the Chief Justice on tax-related matters in 2016 and coincidentally asked how his friend, Judge Pillay’s, interview went. The Chief Justice interpreted this mention as the former minister trying to influence who he votes for in future. It is likely that the Chief Justice wanted to enquire whether Judge Pillay was aware of the meeting and whether she was in favour of the former minister mentioning her name to the Presiding Judge of the JSC.

Casac has been accused of trying to “smuggle” in its own judges and advancing the interests of certain individuals and not the Constitution of the country. Casac noted these allegations as mischievous and unfounded.

This can easily be resolved by ascertaining who the founding members, supporters and their patrons are. This should give an indication of whether they are a mouthpiece for a particular view, whether they are genuinely concerned about the Constitution, or for a particular view of the Constitution. Unfortunately, there was no website containing this information and therefore not much transparency about who their patrons and supporters are and who drives or how they make their decisions.

The JSC decided to settle the matter with Casac and rerun the interviews in order to avoid unnecessary lengthy litigation that would have left the Constitutional Court with acting judges for two to three years.

With all the contentious issues raised, one finds comfort that the interviews will be done over. We, the people on the ground, can therefore only hope that the custodians we elected will put aside grievances and recommend judges who will enforce the Constitution and human rights without fear or favour.

Jansen is a lawyer and is chief executive of Zelna Jansen Consultancy.

The views expressed here are not necessarily those of IOL or of title sites.


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