Zuma's judges dilemma
It may be the most urgent question facing President Jacob Zuma: whether to use his powers of appointment to rein in the courts, where he has faced his most difficult battles, or to facilitate the rebuilding of an independent judiciary from the wreckage of the ANC’s succession battles.
The signals are mixed.
The appointment of Ngoako Ramatlhodi, a key Zuma loyalist and staunch critic of the National Prosecuting Authority (NPA), to chair Parliament’s justice committee and serve on the Judicial Service Commission caps what appears to be an effort to hand crucial justice sector posts to his closest allies.
Ramatlhodi, long tipped as the probable successor to Vusi Pikoli as national director of public prosecutions, was finally admitted as an advocate last month after a long-running corruption case against him was dropped on grounds of insufficient evidence. He was a vocal opponent of the Scorpions, and this week said that judges must ‘know their place”.
The committee will be considering legislation to reform the functioning of courts, including a hugely controversial series of Bills introduced during Thabo Mbeki’s tenure and then withdrawn, which judges saw as eroding their independence.
In his JSC capacity he will play a role in selecting judges for the country’s highest courts, including the Supreme Court of Appeal and the Constitutional Court.
Four founding judges of the Constitutional Court—Chief Justice Pius Langa and judges Yvonne Mokgoro, Albie Sachs and Kate O’Regan—will step down on October 11.
Langa, Mokgoro and O’Regan are regarded with intense suspicion by some of Zuma’s supporters and those of embattled Cape Judge President John Hlophe.
It now appears, however, that Hlophe’s star may be on the wane, both in the ANC and among black judges who have backed him because they sympathise with his crusade for racial transformation of the Bench.
It is not clear if Hlophe will receive more support from the new justice minister, Jeff Radebe—another key Zuma ally—than he did from his predecessor, Enver Surty.
Pius Langa, Hlophe’s chief adversary in his battles with the Constitutional Court, defended Radebe on charges relating to his underground activities during apartheid and cannot be counted on to back Hlophe, judges and other legal figures told the M&G.
The other new ANC appointments to the JSC also seem to have been made in what is becoming Zuma’s signature conciliatory style.
Fatima Chohan was axed as justice committee chair in the latter stages of the Mbeki administration and transferred to the public enterprises committee. But she was a staunch backer of the Scorpions and of the controversial package of judicial reforms championed by her predecessor and partner, former deputy justice minister Johnny de Lange.
She can be expected to support tougher oversight of judges.
The other new appointment is Cecil Burgess, a former Independent Democrats MP who crossed to the ANC.
Burgess earned the undying gratitude of ANC MPs and Luthuli House officials when he used his legal nous to help torpedo liquidation inquiries into the Travelgate affair, sparing the party embarrassment and MPs large debts.
Described by fellow MPs and legal analysts as ‘intelligent” and ‘capable”, he now chairs Parliament’s powerful intelligence committee.
‘He is definitely the flavour of the month,” said an ANC backbencher who requested anonymity.
Burgess was ‘parachuted” into the ANC national list and has since risen rapidly.
Observers in ANC and legal circles agree that Zuma’s long battle against corruption charges, and the frequent attacks by his supporters on the courts, have focused intense interest on his next move.
‘It is inevitable that people will be paying attention,” said lawyer and academic Richard Calland. ‘He must tread lightly”.
Another long-serving former Cabinet minister who spoke to the M&G on the condition of anonymity agreed, saying that in his experience, ‘whenever there was pressure, the executive backed off”.
University of Western Cape legal academic Pierre De Vos is more circumspect, saying that the next Zuma appointments to watch are those of the presidential nominees to the JSC’s, who constitutionally serve at his pleasure.
However, Zuma has indicated that he is in no hurry to replace the current commissioners, Kgomotso Moroka, Seth Nthai, George Bizos and the Public Service Commission deputy chair John Ernstzen.
De Vos says that there will be a ‘big problem” if Zuma replaces the current commissioners with ‘ruling party lackeys”.
Advocate and co-author of a recent book on the judiciary with Judge Dennis Davis, Michelle le Roux, says it is too early to say how Zuma will jump.
Le Roux pointed to the contradiction between his pre-election statement that judges are not gods and another election speech in which he urged respect for the judiciary.
The real litmus test, said legal analyst Shadrack Gutto, will be whether Zuma’s choice of new Constitutional Court judges shows a ‘preponderance of Zuma or ANC loyalists”.
There may be a let-off, for him, however, on the Constitutional Court replacements, as a debate about extending the contracts of the incumbents gathers momentum.
This may help Deputy Chief Justice Dikgang Moseneke, who had been seen as Langa’s natural replacement in the top job, but is reviled by many in Zuma’s circle for his perceived closeness to Mbeki and remarks he made that were interpreted—wrongly, he has said—as critical of the ANC.
‘It seems there is increasing support among the judges for this option,” said one judge, who knows some of the key players. ‘The idea would be that once Zuma gets to know Dikgang, he will realise that he is the best candidate for chief justice.”
Hlophe’s blotted copy book
Western Cape Judge President John Hlophe’s spat with Constitutional Court judges might have killed his chances of assuming a seat in the highest court of the land, writes Sello S Alcock.
Hlophe has been involved in a long-running feud with the Judicial Service Commission (JSC) after 13 permanent and acting judges of the Constitutional Court accused him of lobbying two of them to find in Jacob Zuma’s favour in a search and seizure case.
The allegation came to the attention of the JSC after all 13 judges lodged a complaint with it and Hlophe, in turn, lodged a counter-complaint, in which he accused the judges of infringing his rights by publicising a media statement before hearing his side of the story.
Hlophe’s confidant and University of Cape Town administrator Paul Ngobeni this week said Hlophe was being persecuted just like Zuma for his stance on racism, adding that the judiciary is ‘the last area where whites can exert influence, even though they are in the minority”.
But Luthuli House officials are adamant that Zuma will not risk his re-engineered image by appointing tainted judicial officers like Hlophe. Although Hlophe acted ostensibly to favour Zuma’s case, this will not necessarily help him in his quest to become the country’s chief justice.
‘Hlophe might have thought he was helping, but now the whole thing has spun out of control,” one official said. ‘After all his court issues Zuma wants to have a clean slate, and someone like Hlophe will not help that.”
The thinking is that because Zuma did not directly ask Hlophe to intervene, he does not ‘owe” Hlophe anything. Zuma also does not want to be associated with Hlophe’s myriad legal problems because he wants to show that he will not compromise the judiciary by appointing a chief justice who has a cloud of suspicion hanging over him.
If he is nominated for a position on the Constitutional Court Hlophe will face an uphill battle to convince the JSC that he is a suitable candidate to serve on it.
A recently appointed JSC member says judges are
were held to high standards that Hlophe has shown he might not be able to adhere to.