The ambiguity of 'separation of powers'

Confused issue: Free State Premier Ace Magashule questions a candidate at the JSC. Photo: David Harrison

Confused issue: Free State Premier Ace Magashule questions a candidate at the JSC. Photo: David Harrison

What, Free State Premier Ace Magashule asked Judge Connie Mocumie, is your understanding of the separation of powers? He added: “Out there in the public there is confusion.”

Mocumie was being interviewed for the position of Free State judge president. It was the first interview conducted by the new Judicial Service Commission (JSC) – new in that most of the parliamentary representatives changed after the May election. Julius Malema, Thandi Modise and Mathole Motshekga now sit on the commission.

In another interview, this time for the Cape Bench, Malema asked attorney Kate Savage the same question.

It is a question that has been raised many times, within and without the JSC.
How the issue was addressed by some commissioners raised concern. Prospective judges would frequently be questioned about their understanding of the separation-of-powers doctrine, but this was seldom done in the form of a friendly sharing of views.

Candidates might be presented with the premise that the courts were intruding into the functional spheres of other branches of government. This was seldom coupled with an acknowledgement of the courts’ role in providing checks and balances on the powers of other branches of the government, as the Constitution mandates them to do.

This approach also led to some members of the JSC expressing unease about candidates whose professional background suggested a strong engagement with human rights. Former JSC commissioner Fatima Chohan, now deputy minister of home affairs, at an interview last year expressed concern about the “extent to which the courts have transgressed into the executive and legislative spheres”.

The executive has expressed similar concerns, which is explicable in terms of the number of times it has lost constitutional cases that it defended at great cost. The related issue is the appropriate level of “deference” the judiciary should show to the decisions of the other branches of the government.

Judges, especially of the highest courts, exercise considerable power, including being able to declare legislation passed by Parliament unconstitutional. It is thus relevant to judicial candidates’ suitability to ask how they understand this part of the judicial function.

But the fixation on the separation of powers by some commissioners has impoverished the interview process by not addressing other aspects of what makes a good judge.

It also runs the risk of weakening our judiciary by failing to value candidates whose expertise in human rights law could give us judges who understand and can apply the Constitution – especially its progressive, transformative purpose. Some such candidates have been appointed anyway, but others have missed out.

Compared with how the JSC has handled the issue in the past, the signs from the new commissioners have been encouraging. The questions put to candidates at the first sitting of this JSC were generally fair and relevant, and the separation of powers was not as dominant as in previous interviews.

It was interesting to see Magashule raising the issue. As provincial premier, he was attending only the interviews for the Free State judge president position, and is not a regular member of the commission. Former commissioners Chohan and Ngoako Ramatlhodi, who served on the commission as representatives of Parliament, were especially prominent in raising concerns about the separation of powers.

There are signs of a shift in focus among the new commissioners. Notably, ANC representatives Modise, the chairperson of the National Council of Provinces, and Thoko Didiza, who served in former president Thabo Mbeki’s Cabinets, emphasised access to justice, gender transformation in the judiciary, and judicial leadership and training.

If these early developments are indications of how this new JSC will go about its work, there is cause for quiet optimism. It would be unrealistic and undesirable for the question of the separation of powers not to be raised with potential judges, but the judicial selection process can only benefit if the JSC casts its net of questions more widely.

Chris Oxtoby is a researcher in the Democratic Governance and Rights Unit in the department of public law at the University of Cape Town

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