WILLIAM GUMEDE | As long as politicians choose them, judges will not get a fair trial

The Judicial Service Commission (JSC), which selects judges, including recommending the chief justice, should be reformed to reduce the number of politicians thereon and introduce civil society representatives.

The fundamental flaw in the JSC is that it is dominated by politicians and appointees of the president, with no societal representation. In the current set-up the president and ruling party have a disproportionate say in who should be selected as chief justice.

Section 178(1) of the constitution describes how the JSC, which is chaired by the chief justice, should be constituted. Representatives from the judiciary include the president of the Supreme Court of Appeal (SCA), a judge president, two practising attorneys and two advocates, who are nominated by the legal profession. The commission also includes a professor of law and the minister of justice. The constitution also calls for six MPs from the national assembly and four from the national council of provinces (NCOP) to be to the commission.

Apart from the president making the final decision on who to appoint as chief justice, based on the JSC’s recommendations, he also has the power to designate four people to the commission, in consultation with leaders of political parties. The ANC therefore has a strong say in who the JSC elects.

For example, in November 2021, ahead of interviews for the chief justice position, the ruling party’s chief whip, Pemmy Majodina, sent the party’s parliamentary caucus recommendation to President Cyril Ramaphosa. It proposed judge Mandisa Maya for the position.

A number of career politicians, members of the JSC, have in the past criticised the judiciary for defending the constitution. Some have been investigated for wrongdoing or are associated with politicians involved in alleged corruption. As such they should not be members of the commission because they are unlikely to recommend judges who have found against powerful politicians.

Sadly, this means judge Dunstan Mlambo, who has in the past ruled against former president Jacob Zuma, and acting chief justice Raymond Zondo, who chaired the state capture inquiry — despite their intellect, integrity and competence — are always going to be ambushed by the JSC.

Politicians fingered by the Zondo commission and those such as Dali Mpofu, who represents Zuma in his corruption trials, were waiting, probably salivating, for the chance to ambush him at recent JSC interviews because of his role in probing state capture.

Last year Zuma attacked judges Zondo and Mlambo for rulings against him. In 2017 judge Mlambo ruled Zuma, with corruption charges hanging over his head, was conflicted in appointing ally Shaun Abrahams as national director of public prosecutions (NDPP). Similarly, judge Zondo is likely to lose out on the top job because of his diligent exposure of corruption.

Because of the domination of politicians and the president in nominating the chief justice, former deputy chief justice Dikgang Moseneke, a brilliant legal brain, genuine democrat and constitutionalist, was denied the position because he said judges should protect the interests of SA and not those of the ANC. Instead, judge Mogoeng Mogoeng was appointed after ANC politicians and Zuma used their power over the JSC to sideline Moseneke.

During last year’s JSC interviews for Constitutional Court positions judge Dhaya Pillay was attacked by EFF leader Julius Malema, who sits on the JSC, for her alleged friendship with public enterprises minister Pravin Gordhan, who Malema views as a mortal enemy.

In 2020 judge Pillay was attacked by members of the ANC, including its Youth League, after she rejected a sick note presented by Zuma to explain his absence from court. Zuma was appearing before her in the Pietermaritzburg high court on charges relating to the arms deal, in which he is accused of pocketing bribes from French arms manufacturer Thales.

Zuma supporters on the JSC made sure judge Pillay would not be appointed to the Constitutional Court, despite her extraordinary legal capabilities.

Politicians on the JSC should be beyond scrutiny. They should not be under investigation or involved in impropriety. Those who attack the judiciary should be disqualified from the commission and politicians involved in cases overseen by judges being interviewed should also not be a part thereof. 

During interviews for the chief justice it was clear Mpofu has a conflict of interest, having represented Zuma after he failed to appear before the Zondo commission and was jailed for contempt of court. This may be grounds for a legal bid if judges Zondo or Mlambo do not get the job. Ramaphosa should disregard the JSC recommendation and appoint one of the men to the position to reduce politicians’ hold on the appointment.

William Gumede is associate professor, School of Governance, University of the Witwatersrand, and author of ‘Restless Nation: Making Sense of Troubled Times’ (Tafelberg).