The DA called on Tuesday for the number of politicians on the Judicial Service Commission (JSC) to be reduced - evoking a lukewarm response from the ruling party.
“There is an imbalance here,” Democratic Alliance justice spokeswoman Dene Smuts told Parliament's portfolio committee on justice in deliberations on the 17th Constitutional Amendment Bill.
“We have sympathy with the judges in that they are outnumbered. What on earth is the argument for having more MPs than actual judges?
“You know as well as I do that the JSC is highly problematic and that it is the direct consequence of politicisation.”
The JSC includes 10 MPs - six from the National Assembly, of whom half must be from the opposition, and four from the National Council of Provinces - but only three judges.
They are the chief justice, the president of the Supreme Court of Appeal and a judge president.
The bill foresees the inclusion of the chairman of the magistrates' commission and his deputy in the JSC, swelling the presence of the judiciary.
Smuts argued that lawmakers should go further. She recalled that the rationale for creating the JSC was to move the power of making judicial appointments away from the executive, but said this had not truly been achieved.
“The composition of the JSC as it is in the final Constitution has more politicians than judges in it. We would like to argue that that should be adjusted and corrected because you have in effect 10 MPs, as against three judges.”
She suggested that the Constitution be amended to require that all judge presidents sit on the commission every time it convened.
Alternatively, it should include two judges from the Constitutional Court, two from the SCA and two judge presidents.
John Jeffery, from the African National Congress, said Smuts had been party to the constitutional negotiations, had voted for the final product and should therefore accept the status quo.
“You know perfectly well what the nature of negotiation is,” she countered.
“The fact that you voted for it does not mean that you would not want to improve some sections. In addition this is a very clear case where we see x years down the line that there are problems.”
Jeffery raised the possibility of reducing the number of MPs to three elected by majority vote, but suggested that Smuts's concerns were overblown as politicians rarely agreed with each other and those on the JSC were unlikely to vote as a bloc.
Fellow ANC MP Patekile Holomisa joked that Smuts may be appeased by halving the number of MPs from the National Assembly on the commission, but deleting the requirement that it must include opposition members.
Commentators have accused the Zuma administration of in effect taking control of the JSC and ensuring that its preferred nominees get appointed to the Bench and promoted.
The JSC announced on Tuesday that it was extending the deadline for nominations for 14 vacancies on the Bench, including one at the Constitutional Court, two at the Supreme Court of Appeal and that of judge president in the North and South Gauteng High Court, to February 17 “in view of the limited number of nominations received”.
Smuts said this could be confirmation that aspiring judges were increasingly reluctant to brave the JSC.
“The question has to be asked whether aspirant judges are discouraged and fail to apply because excellent candidates have been turned away by a politically dominated JSC.”
On Tuesday, MPs also inconclusively debated the virtue of the bill's proposed amendment of Section 167 of the Constitution to make the Constitutional Court the highest court in the country in all matters. - Sapa