Prosecutor Gerrie Nel.
Prior to this year’s national elections and its ushering in of a new Judicial Service Commission (JSC), the separation of powers doctrine was approached by some commissioners interviewing prospective judges with all the menace of street brawlers.
On the previous commission, Fatima Chohan and Ngoako Ramatlhodi, the deputy ministers of home affairs and correctional services respectively, were the main purveyors of the notion that the judiciary, through its judgments, often encroaches into the spheres of the executive and the legislature (Parliament).
The duo were guaranteed to test candidates on their interpretation of the separation of powers and had perfected strategies that went beyond the mundane, often-asked question, “What is your understanding of the separation of powers?”, to which candidates could recite a structural explanation of a constitutional democracy with a Parliament, an executive and a judiciary.
In April, during the commission’s first sitting of the year, Chohan told the Legal Resources Centre’s Mahendra Chetty, who was later appointed to the KwaZulu-Natal Bench, that his track record in representing the country’s poor and marginalised “worried” her because it meant his subjectivity could be swayed in that direction.
It could be bruising. And often was, especially as some judges sought the fine line between defending their independence and maintaining that, rather than being anti-government zealots, they were merely rectifying a “system failure” and that a tension between the three arms of government was a natural aspect of constitutional democracies.
Chohan and Ramathlodi pushed the “counter-majoritarian” argument that an unelected judiciary was becoming an alternative seat of power and governance — an accusation that appears to have little factual traction.
Research by Chris Oxtoby, of the University of Cape Town’s Democratic and Governance and Rights Unit, looking at the period 2009 to 2013, found that the Constitutional Court was mindful of the separation of powers. This was evident in rulings such as that involving the Opposition to Urban Tolling Alliance, which found for the state when civil society organisations had mobilised against e-tolling on Gauteng’s major roads.
The profile of the eight ANC members on the JSC (expanding to nine when the premier of an ANC-controlled province sits in for interviews in that provincial division) had changed dramatically by the time of its most recent sitting in early October.
Chohan and Ramatlhodi had left the commission and the new justice minister, Michael Masutha, appeared to have little appetite for political games during interviews.
MPs such as Thoko Didiza and National Council of Provinces chairperson Thandi Modise exhibited more independent-mindedness in their lines of questioning than their predecessors.
The differing approach may have been down to the positions advertised, which did not include vacancies on the Supreme Court of Appeal or the Constitutional Court — which usually sparks serious interrogation of the separation of powers doctrine — or the “freshman” nature of the commissioners. So it was left to older hands, such as Free State Premier Ace Magashule, to test the “politics” of candidates by asking them their views on the separation of powers.
Magashule nailed his executive-minded colours to the mast when he followed up the separation of powers question to acting appeal court Judge Connie Mocumie with one about whether findings by chapter nine institutions, such as the office of the public protector, were binding.
Mocumie was spared discomfort by commission chairperson Chief Justice Mogoeng Mogoeng, who ruled the question inappropriate because it could end up before the Supreme Court of Appeal.
Although Jacob Zuma diehards toed the line, there was freshness in the new JSC. There was a palpable sense that, perhaps, with several scandals hanging over him, the presi-dent has taken his eye off the judiciary ball.
More compliant or executive-minded judges would certainly fit what is considered to be Zuma’s agenda. This appears to be centred on eroding any democratic institutions that could play a part in his possible prosecution on fraud and corruption charges, whether it be the National Prosecuting Authority, the judiciary, or the Constitutional Court, to which he is likely to make three more appointments over the next five years.
Still, three sittings of the commission later, the president has yet to replace his executive appointment of advocate Vas Soni — hardly the actions of a man with both eyes on his future.