It’s politics as usual at the JSC

It is a relief to report that ad hominem attacks seem a thing of the past in the Judicial Service Commission (JSC) interviews for appointments but this week served as a reminder that candidates must traverse the same minefield of parochial politics. 

Judge Elias Matojane did so with great knowingness, at times asking commissioners not to lead him down that path.

In December, Matojane ruled that former spy master Arthur Fraser’s decision to grant Jacob Zuma medical parole was unlawful and ordered that the former president return to prison to serve his 15-month sentence for contempt of court.

Economic Freedom Fighters (EFF) leader Julius Malema did not once say Zuma’s name as he tried, as is his wont, to question a judge on a ruling that did not suit his party’s agenda. It was particularly egregious in this instance as an appeal is pending before the supreme court of appeal (SCA), where Matojane is a candidate to fill one of five vacancies.

The question was cast as an inquiry as to why the prison system is called correctional services. Matojane said it implied an emphasis on rehabilitation. Malema then asked how this applied in the case of an 80-year-old man — a reference to Zuma’s age.

Matojane asked that he understand a judge’s task was to adjudicate on the points placed before him by the parties to a case.

“Much as you have a wide discretion, you cannot go beyond what is before you. You cannot go on a frolic of your own,” he said, but Malema persisted, saying it was his understanding they had to consider the wider interests of the country and it was not clear how this was served by jailing an old man. “You want to get me into trouble by asking a political question … I know where you are going,” the judge objected.

This exchange echoed one between Matojane and Malema before the JSC in April last year. Back then, Malema needled him on finding the EFF had defamed former finance minister Trevor Manuel in a tweet terming the selection process of a new tax commissioner nepotistic and corrupt. And then too, Matojane called him to order, saying: “I have said what I had to say [in my judgment]. I am constrained.”

On Tuesday, advocate Kameshni Pillay expressed reservations about Matojane’s dissenting judgment in Democratic Alliance vs Minister of Cooperative Governance, where he held that  section 27(2) of the Disaster Management Act was unconstitutional because it saw an excessive delegation of legislative power by parliament to the executive.

Pillay said the government had to respond to a pandemic of unknown proportions and even the constitutional court recognised the need for the minister to have those powers in a disaster. The principles he espoused in his ruling, she argued, seemed more applicable under ideal circumstances than in such a calamity.

Matojane asked: “Can I come in here? The point is, yes, the minister should have those powers but she must account to parliament after. We can have an earthquake today, maybe in the next week or two let her come to parliament and have that issue debated and relevant legislation passed.”

Justice Minister Ronald Lamola intervened to support Pillay and said ministers had accounted to parliament on lockdown restrictions because they were called to brief portfolio committees.

“Was legislation passed?” Matojane asked, adding that he did not recall the legislature adopting laws banning jogging or buying cooked chicken.Lamola countered: “The Act is not as wide as I hear you to be saying, that it is an unchecked exercise of power.”

Advocate Caroline Siebenberg noted legal commentators worldwide had warned of “the dangers inherent in the powers given to the executive during times of emergency and the way in which they potentially threaten constitutional democracy so … I would commend you for raising the issue.”

Matojane thanked her and began drawing an analogy with how states of emergency became a feature of apartheid rule but stopped himself.

“Just a short comment — during apartheid they would govern through [these] regulations and … maybe let me withdraw that.”

At the end of his interview, he made the following appeal. “It is just a plea, with respect, that the commissioners should bear in mind that we are sitting judges. I may be in court tomorrow and, if I am to avail myself for this process and get humiliated, what are we saying to the parties who are appearing before us?

“That has a decisive impact on the rule of law because you want litigants who appear before you to have confidence that their matters will be ably and properly adjudicated upon. But if, in this platform, it is insinuated that I don’t know what I am doing, why should a losing litigant accept he or she was unsuccessful in that matter?”

A similar point was raised on Monday by Judge Piet Koen, who is hearing Zuma’s arms deal corruption case and was famously humiliated by former chief justice Mogoeng Mogoeng in a past interview, when commissioner Mvuzo Notyesi asked why he had submitted, in support of his candidacy, a postponement granted in that matter in May. Notyesi suggested it was a banal choice. Koen countered it was a topical one.

It was important, for the sake of respect for the courts, that the public understood the rationale for rulings, including his in this instance where heeding section 18 of the Superior Courts Act resulted in another delay in a case yet to go to trial after almost two decades.

The application had been described by the state as part of Zuma’s tireless Stalingrad strategy, and Koen seemed mindful that there might be a popular perception that he, and perhaps other high court judges, readily yielded to such.

Last year the JSC, under legal duress, repeated  interviews that had been marred by overt politicking.

Gauteng high court judge Sulet Potterill dealt deftly with questions about politically sensitive cases in her interview for a seat at the SCA.

In 2019, Potterill granted an interim interdict to suspend the public protector’s directive that President Cyril Ramphosa discipline then public enterprises minister Pravin Gordhan, pending the latter’s challenge to her report into allegations of a so-called rogue unit at the South African Revenue Service.

In her ruling, Potterill said of the remedial action set out by now suspended public protector Busisiwe Mkhwebane: “Much of the orders are vague, contradictory and/or nonsensical.” It unleashed a storm of criticism, much of it on social media and some of it instigated by Mkhwebane herself, who paid consultants to plant negative stories on Potterill.

The judgment informed an objection to her candidacy for the SCA by one Mr Max Masuku to the effect that she did not understand the law. It also informed Notyesi and Malema’s questions, though neither openly referenced the ruling.

Notyesi suggested she used harsh, disparaging language in her rulings and had been taken to task by the constitutional court for it. Potterill said the apex court never had done so but acknowledged her use of the word “nonsensical” had been discussed among peers.

Malema said she was seen as “the most favourite” of Gauteng Judge President Dunstan Mlambo to sit with him on high-profile cases and that, in the process, more senior judges were overlooked. Potterill replied: “I sat in one full bench with the JP. So I don’t think that is correct.”

Her response to a question about continued male dominance at the highest level of the judiciary was as firm: “I am very confident that we will get them off their thrones,” she said when asked by Pillay why not one of the senior courts in the country was headed by a woman at present, if one did not count deputy Chief Justice Mandisa Maya.

“We need to grapple with the elephant in the room and the reality is there is just a lack of political will. And then the question is how do we grapple with that elephant in the room — is it just men clinging to power and perpetuating?” Pillay said.

Potterill agreed with the premise, but added part of the problem was that once women were appointed to the bench, they tended to focus all their energy on the job at hand and neglected to put themselves forward for leadership positions. “You are right. It is glaring that there is, except for Judge Maya, just nobody.”

“I think we are so trying to prove ourselves as judges that we are not even thinking of leadership roles.” She then suggested that the tide was slowly turning, on the evidence of recent meetings of the South African Chapter of the International Association of Women’s Judges.

In the run-up to this round of interviews, Judges Matter noted the JSC would be under pressure to assure more parity as almost half of the country’s judges are women, however, there are only female candidates for only three of the five leadership postions the JSC must fill. It recommended neither Potterill nor Koen for appointment but gave the nod to Matojane and judges Sharise Weiner, Daisy Molefe, Pieter Meyer and Glenn Goosen.

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