The composition of the Judicial Service Commission is in the spotlight with the appointment of new MPs to its ranks.
Last month’s announcement that Julius Malema was to be one of the new parliamentary representatives on the Judicial Service Commission (JSC) was greeted with a mixture of intrigue and alarm.
But before we spend all of our time talking about Malema and what to expect from his presence on the JSC, as a regular observer of the JSC I hasten to point out that however much of a media honeypot Malema may be, the importance of the composition of the commission extends beyond one politician.
The JSC recommends the appointment of judges to the superior courts. It therefore goes without saying, bearing in mind the significant powers that our Constitution vests in the courts, that the JSC’s role is an extremely important one. Judges matter. And so, therefore, does the appointment process that decides who should dispense justice in South Africa - and the political representatives play a key role in this process.
The JSC comprises a core of 23 people, including the minister of justice, six members of the National Assembly (three of whom must be from opposition parties), and four members of the National Council of Provinces (NCOP).
Thus, 11 of the core 23 are politicians, and the president appoints four further commissioners, though currently those commissioners are all lawyers.
In addition to Malema, the new political representatives are National Assembly members Mathole Motshekga (ANC), Thoko Didiza (ANC), Dikeledi Magadzi (ANC), Hendrik Schmidt (DA) and Narend Singh (IFP); NCOP delegates Thandi Modise, Tsapane Mampuru, Dikgang Stock and Dumisani Ximbi; and South Africa’s new justice minister, the highly regarded and long-time member of the National Assembly Mike Masutha.
The JSC is frequently criticised for its appointment decisions. While this is not entirely attributable to the politicians, some of the outgoing commissioners (in particular new Minister for Mineral Resources Ngaoko Ramatlhodi and Deputy Minister for Home Affairs Fatima Chohan) rigorously interrogated candidates on the issue of the judiciary needing to show greater deference to the executive and legislative branches of government, and evinced a discomfort with candidates from more activist backgrounds.
This contributed to a situation where the JSC often appeared to be trying to appoint judges who were more conservative and less likely to challenge the constitutionality of government actions. (A primary example was the decision to appoint Nigel Willis rather than Clive Plasket, a judge with a proud record as a human rights activist but also a perceived record of finding against the government.)
What should we expect from the new political representatives?
Motshekga is a party heavyweight, having previously served as the ANC’s chief whip, and is now the chair of the parliamentary portfolio committee on justice. It is tempting to think that he may be the kingpin of a political caucus. However, Modise also carries significant credentials, as a former premier of the North West, a former deputy president of the ANC Women’s League, and the current chairperson of the NCOP.
Motshekga might be at the forefront of the separation of powers debate, having previously criticised a Constitutional Court decision that found parliamentary rules unconstitutional.
Masutha previously worked as the director of the Disability Rights Unit at Lawyers for Human Rights, which may give him the perspective to balance any hostility by his colleagues towards suspected “activist” judges.
He is a long-time member of the National Assembly, having been first elected in 1999, and is highly respected by organisations that are active in Parliament for his notably modest and measured approach to controversial topics.
Thoko Didiza, a “returnee” Mbekite, well understands the relationship between the rule of law and economic development, and recognises that South Africa’s quality of justice provides it with a competitive advantage over other emerging economies that needs to be carefully protected.
Modise’s high profile will hopefully stimulate more active involvement of NCOP members, whose predecessors seldom asked questions during the interviews.
Schmidt is the only politician to have served on the previous JSC, although he has appeared increasingly more marginalised in recent sittings.
Like Motshekga and Masutha, he is also one of the few political representatives who is a qualified lawyer. This might seem to be problematic, but part of the purpose in having politicians on the JSC is to allow for a broader input of views in the judicial selection process. Having a JSC of lawyers alone might seem logical, but could risk the commission turning into a professional cabal.
Ximbi could be an interesting presence on the commission. A former member of the United Democratic Movement and a leader of the Twelve Apostles Church in Christ, he was quoted as saying that members of his church would be likely to vote for the ANC once he had changed parties, because “members in my church follow their leader. We believe that the leader is God, so his voice is God in the church. ... They stick to what the church decides”. One hopes that he will look for more independence of mind in prospective judges.
And what of Malema? There is an important, and wider, debate to be had about whether it is appropriate for somebody who faces criminal charges to be involved in the selection of judges.
As to his role on the JSC, much may depend on whether his party wants to appoint judges who show a principled commitment to the rule of law, or wants to use the JSC as just another opportunity to showcase their particular political brand.
The latter will test the chair of the JSC, Chief Justice Mogoeng Mogoeng, but he should not be underestimated, having shown an increasingly confidence and assertiveness in reining in errant lines of questioning. How this chimes with the new political representatives will be one of many fascinating subplots when the new JSC starts its work in October.
The new JSC is to meet for the first time in the second week of October to discuss five vacancies,: a Judge President of the Free State High Court, two openings in the Western Cape, and two positions in the Labour Court and the Eastern Cape High Court.
Oxtoby is a researcher at the Democratic Governance and Rights Unit (DGRU) at the University of Cape Town.