Winding down: The Judicial Service Commission may finally call a stay on the Judge John Hlophe affair.
NEWS ANALYSIS
When President Jacob Zuma appointed senior counsel Dumisa Ntsebeza, Ishmael Semenya and attorney Andiswa Ndoni to the Judicial Service Commission (JSC) in 2009, there was an outcry. Eight years later, there is an outcry again: this time because he removed them.
Back then, commentators were concerned that the three had been deployed to the JSC to do the president’s bidding and to procure a more compliant judiciary. Today Ntsebeza, Semenya and Ndoni are hailed as fiercely independent and are highly respected.
When they were appointed, the timing was particularly concerning: the JSC was at a critical point in trying to resolve one of the most contentious complaints of gross judicial misconduct — against Western Cape Judge President John Hlophe.
Though he has consistently denied it, Hlophe was alleged to have sought to influence the outcome of four Constitutional Court judgments, all connected to corruption charges that Zuma was facing at the time. In other words, he was accused of trying to influence the justices of the highest court to find in Zuma’s favour.
The term “state capture” was not a thing then, but if it had been, it would have been the catchphrase.
Now, once again, the timing of Zuma’s move is disconcerting: the JSC is about to interview for an appointment to the Constitutional Court, which has given the government a series of drubbings, such as the recent judgment in the case on social grants and the Nkandla judgment.
Then there were the ominous remarks by State Security Minister David Mahlobo, who reportedly said the media, judiciary and other institutions are being abused by domestic and foreign actors to undermine the government, speaking of people who “run to court on political matters to undermine decisions taken by government”.
This was, even more ominously, closely followed by a robbery at the office of the chief justice in Midrand in Gauteng — where the robbers bypassed the reportedly more valuable computers in the finance section and proceeded directly to the HR department to take those.
In a constitutional democracy, tension between the arms of state is expected, healthy even. In South Africa’s very noisy and robust democracy, this tension has flared up often and it is sometimes difficult to tell when it is time to get really worried.
Given the recent developments, it is unsurprising that the president’s surprise move in changing his JSC delegates is being questioned and scrutinised.
But several lawyers mostly expressed confidence in the president’s new choices — Thandi Norman SC, advocate Thabani Masuku and attorney Sifiso Msomi.
According to the Advocate magazine, Norman has been a lawyer since 1993 and began her pupillage in 1996. She was the first black African woman to take silk at the KwaZulu-Natal Bar and is respected by her peers. A source at the Johannesburg Bar, where she now keeps chambers, said she is “very good — and no pushover”. A source at the KwaZulu-Natal Bar agreed.
Sources were a little more cautious about Masuku, an advocate at the Western Cape High Court, saying he was relatively junior for the JSC. Masuku has recently been recommended for silk but is yet to receive his letters patent. He has acted twice on the Western Cape High Court Bench and has appeared before the Constitutional Court in seven matters as junior. He was also a clerk for former Constitutional Court Justice Richard Goldstone.
But he is most well known as the one advocate who has consistently been a member of Hlophe’s legal team in the prolonged, and still unresolved, gross misconduct complaint.
His being appointed to the JSC will mean he will have to recuse himself from the commission when it needs to make decisions on the complaint.
Msomi, deputy chairperson of the Black Lawyers’ Association, is a partner at the respectable Durban law firm Shepstone and Wylie, and his practice focuses on property law. He is less well known than the other two, but Durban-based lawyers said Msomi was reputed to be independent-minded, with one saying that he was critical of the political establishment.
The presidency was not required to give reasons for its new appointments and did not do so. Nor has the profession or the legal academy given reasons when it has replaced its own appointees to the JSC, which they all do fairly routinely.
It bears remembering that the idea of the Constitution giving the president the power to appoint four members of the commission is precisely to represent his interests, as the head of state, in the appointment of judges.
The four presidential delegates are balanced by representatives of the judiciary, the legal profession, academia and members of Parliament and of the National Council of Provinces.
More importantly, even if Zuma does have nefarious motives for making the new appointments, the JSC’s procedures are, to some extent, designed to insulate commissioners from too much direct political control. Once appointed, the JSC’s policy is that commissioners are expected to exercise their independent judgment and to be open to persuasion by their colleagues.
More pertinently, decisions are made by secret ballot, which protects individual commissioners from political pressure. Stories abound of how, after the commission deliberates, commissioners have expected one outcome only to be stumped by the result produced by the secret ballot.
The secret ballot was championed by Ntsebeza and will be one of his lasting legacies.
In any event, the effect of the new commissioners cannot be judged from the upcoming sitting. For Constitutional Court appointments, the role of the JSC diminishes. Whereas with appointments to other Benches the president’s role is little more than to rubber-stamp the choices of the JSC, it is different with the Constitutional Court.
With this court, the JSC has to give the president a list of names, three more than the number of vacancies being interviewed for, from which he is free to take his pick. With the upcoming interviews, there are five candidates. The list that must go to the president will comprise four names. The only job of the JSC will be to prune one from that list.