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Judicial Service Commission — unfit for constitutional purpose


In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

Yesterday this column raised, and not for the first time, the fact that the Judicial Service Commission was unfit for constitutional purpose. That was before the interview of Justice Dunstan Mlambo which allowed the commission to plumb new depths of bias, political posturing and abysmal failure to fulfil its mandated task.

The Judicial Service Commission (JSC) should conduct searching, but courteous interviews designed to apply as objective a set of criteria as possible to ensure rational recommendations for judicial appointment.

But that is not how this JSC works.

The modus operandi of a number of commissioners is to score points in order to ensure the appointment of their chosen one rather than to conduct fair interviews of all nominees. 

On Wednesday, the JSC hardly asked President of the Supreme Court of Appeal, Justice Mandisa Maya, one probing question. 

There were no searching questions about her constitutional jurisprudence.

Her legitimate points about sexism in the profession and on the Bench notwithstanding, not one question was raised about the influence of the variegated schools of feminist jurisprudence on our legal development.

There were no questions about what appears to be a more recent, but similar decline to that of the Constitutional Court in the quality of SCA judgments.

There were no questions about the continued complaints about the so-called top six of the SCA over a long period and save for a diversity workshop, no questions as to why each time an SCA judge appears before the JSC, a complaint continues to be made. 

There were thus no probing questions to fairly test the claims that Justice Maya had truly led the SCA into the promised jurisprudence land. And, given a set of questions to Justice Mlambo, there were no questions about Justice Maya’s struggle credentials.

The Mlambo interview got off to a biased start with Deputy President of the SCA, Justice Xola Petse, who had taken a “more tea, Justice Maya” approach to his SCA colleague, being overtly hostile to Justice Mlambo, asking him about “running away from the SCA”, an exercise in bias from the first ball bowled when the fact was that Justice Mlambo had proceeded to be President of the Labour and Labour Appeal Courts, thereby ensuring enhanced efficiency of these important institutions.

But this was nothing compared with the tag team of Julius Malema, Dali Mpofu SC and Griffiths Madonsela SC. 

Madonsela, who was but gushing in his endorsement of Justice Maya, began by asking Justice Mlambo about his struggle credentials, suggesting in the absence thereof that a judge could not adequately develop our constitutional jurisprudence. 

If this was so important, one wonders why he did not address the same question to all candidates. 

Madonsela then proceeded, notwithstanding a belated qualification that this was not his personal view, to question Justice Mlambo about a series of cases in which Jacob Zuma, the RET faction through various guises, the EFF and the Public Protector have lost cases before the Gauteng High Court.

That the judge had to correct the obvious flaws in advocate Madonsela’s legal premises was bad enough, but that the JSC interview was used to attack judgments that defended the Constitution and were upheld by higher courts raises serious questions about the motives behind them. Had they been designed to probe a legal philosophy of a candidate, this line of question would have been fine, but the only purpose was designed to show that Justice Mlambo was biased against those whose very strategy is variations of State Capture.

But as always, the key members of the tag team were the two “Ms”, Mr Malema and advocate Mpofu. Both raised the question of sexual harassment allegations levelled against Justice Mlambo. It is important to emphasise that they did so without producing a jot of evidence. Now both these men sit on the JSC. If they had any basis for their allegation beyond malicious rumour-mongering designed to scare off the president from appointing Justice Mlambo as Chief Justice, they were duty-bound to have ensured that the JSC investigate.

That Justice Petse initially allowed this seemingly orchestrated attack without any attempt at providing evidence on a distinguished judge only compounds the felony, particularly in that no notice was given to Justice Mlambo about this line of questioning.

By the time Justice Petse impersonated Rip Van Winkle, awoke and ruled this line of question out of order, the purpose of this disgrace and hence the damage, had been done.

What compounds the conduct of both Petse and Mpofu was the remark the latter made yesterday about spending the night with Justice Maya when they studied together. That so committed a feminist, as Mpofu claims to be, can consider such a remark funny, let alone appropriate at JSC proceedings and that, as chair, Petse could allow it without comment is further evidence of the complete decay of the present JSC.

After this performance, its recommendations can hardly be taken seriously. More than that, it should be immediately disbanded and reconstituted with fewer politicians and more members from civil society who are committed to the survival of a constitutionally committed judiciary.

There are third parties who must share the blame for JSC’s act of calumny. Advocate Madonsela was appointed to the JSC by the president, which may say more about Ramaphosa’ desire to balance the competing factions in the ANC than his commitment to a JSC that should exist, contrary to the desire of the RET faction, to strengthen constitutional democracy.

Advocate Mpofu, according to uncontradicted media reports, faces serious disciplinary proceedings at the hands of the Legal Practice Council, yet the Bar whom he represents did not ask him to take leave of absence from the JSC until he is cleared. What a reflection of the commitment of the legal profession to a constitutional institution!

It appears that no one, be it the president, the legal profession or the judges who sit on the JSC really cares about the image of the JSC in the eyes of the public.

That those who participated in this sham of a serious interview for the Chief Justice are probably correct that — even though on all objective criteria Justice Mlambo is by far the most qualified — the president will be intimidated into not so appointing him, shows what a mess we are in. DM 


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Comments - Please in order to comment.

  • Dennis Bailey says:

    Agreed. JSC is an utter and unequivocal disgrace. A totally miserable and unamusing Punch and Judy show.

    • Charles Parr says:

      The only positive to come out of this is that the country must be very near the bottom now. This is such disgraceful conduct that one only associates with second rate TV shows.

  • John Traas says:

    An excellent appraisal of what seems to be a concerted effort to emulate the farcical, biased confirmation hearings of the US senate for the US Supreme Court for Justices Kavanaugh and Barrett!
    We can only hold out the vague hope that the President will see through all the dross and look to the true merits of the various candidates.

  • Alan Paterson says:

    One wonders if these “worthy” members of the committee are being paid (at “lawyer rates” and by the hour) by the taxpayer? And with the sole purpose of representing their factions as opposed to asking questions suitable for this crucial position. We all know about Mpofu and Malema so why they are even members of the JSC is beyond me. Now Griffiths Madonsela is added to the toxic brew. And as for Petse? Deputy President of the SCA? Is he fit for purpose? Really? All I can say about this horror show is garbage in, garbage out. Thank you Prof, as always cutting to the chase. You must be personally affronted by having to comment on this debacle.

    • virginia crawford says:

      Agree – disgraceful! Dali Mpofu brings disrepute to the law. It is a sickening display- guffaw of laughter about “spending the night” with a woman judge. Disgusting.

  • André van Niekerk says:

    The JSC has lately resembled a captured organisation. One of the saving graces for our country, during the Zuma capture era, has been the fact that that there was, by and large, an independent and still principled judiciary. The JSC now resembles the judicial version of the RET faction, attacking the remaining judiciary that is holding out against corrupt forces.

    It is a principle in most government processes that politicians are not allowed to get involved in operations. How then has the JSC been constituted to function in contrast to this principle? To have politicians to serve in the selection of judges is a recipe for state capture. The raison d’etre of the JSC, and its powers should be seriously reconsidered, as it currently operates in a questionable manner, risking the very independency of the judiciary.

    • Vin Meagher Meagher says:

      “How then has the JSC been constituted…” raises the question as to whether the President can reject all the JSC recommendations, disband the entire group and remove any future danger of involving politicians, their lawyers and a further risk of it being a captured organisation.

  • Helen Swingler says:

    Great material for Zapiro. Three clowns and a ring master without a whip A circus.

  • Chris 123 says:

    How these morons got on the JSC in the first place is the real problem.

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