/ 9 October 2023

‘Convenient democrats’ want to review the composition of the JSC

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JSC chairman, Chief Justice Raymond Zondo. (Oupa Nkosi/Judges Matter)

The Judicial Service Commission (JSC) conducts interviews of prospective judges in the various levels of the judiciary and ultimately advises the president on which candidates should be considered to sit in our courts. 

This body is established in terms of section 178 of the Constitution, and comprises judges, members of the legal profession, academics and public representatives nominated by the National Assembly.

For many years, not much attention was given to this body, which is tasked with the crucial task in our democracy of assessing individuals who will enforce justice, law and order. 

Regardless, the JSC has become a focal point of the nation’s attention, with interviews assuming a far more robust character, and established legal fraternity favourites not always making the cut. 

It is this reality that has exposed the vested interests of certain sections of our society who revealed that their understanding of democracy is actually a democracy of “things must go my way”. 

The entitlement and subsequent manufactured uproar when things do not go their way, has led to the legitimacy of the JSC being questioned, only when the outcomes of interviews and deliberations do not suit the desires of a select few professionals and journalists.

This is to say that, the questioning of the composition of the JSC, or the sudden outcry against its politically robust nature, only seems to arise when certain candidates are not selected. 

Let us look at the ethos and intent of having public representatives as part of the JSC, so as to dispel the idea that it is an inclusion for the sake of political expediency. The presence of democratically elected leaders in the JSC is critical, not only to ensure that those who are appointed are tested on their social and economic appreciation of South African society and how they apply the law, but equally to ensure the democratic legitimacy of those who preside over our courts. 

Members of the National Assembly, draft and adopt legislation; essentially they craft the laws that judges implement.

If we seek to maintain synergy between the laws of our nation and those who apply them, there must be a contribution by democratically elected leaders towards who presides over our laws. 

In essence, the presence of members of the National Assembly in the JSC is the presence of the people in the appointment of their own judges. So those who are calling for the removal of politicians from the JSC are effectively calling for a removal of the people from the process of appointing judges.

What ought to concern the so-called champions of democracy and the rule of law is not the presence of politicians on the JSC, but when, in almost a tyrannical fashion, the president uses his discretion to appoint judges, without any due consideration of the proposals by the JSC, ostensibly not using the guidance of a democratic process, but his own subjective preference.

When the president disregards the recommendations of the JSC, he is not only disregarding the recommendations of judges, legal practitioners and academics, but equally, the recommendations of the people. 

Is it democratic that our Constitution ostensibly grants the president the final and sole prerogative to appoint judges, who, as recent history has shown, is prone to facing litigation? 

Why was there no uproar from civil society and the media when Chief Justice Raymond Zondo was appointed by President Cyril Ramaphosa, despite scoring the lowest among his peers in the interview process by the JSC?

Is it not dangerous that the recommendations of a constitutional body constituted by 23 individuals can have its recommendations disregarded by a president who may have a perceived bias towards appointing a man who has through his judgments pursued his political opponent?

The problem with the social commentators, and at times even journalists, is that they feign neutrality until institutions of the state make decisions that they do not like. 

The appointment of Zondo was irrational in all respects, yet it was met with the proverbial ululation by the legal journalists. 

However, should the JSC not recommend Judge David Unterhalter for a seat at the supreme court of appeal, then South Africa faces a judicial Armageddon at the behest of politicians. 

Perhaps we should all do well to remember that Cyril Ramaphosa is a politician, so it is rather strange that his individual prerogative, as opposed to a collective assessment by a multi-representative body such as the JSC, is not questioned as being clouded by political motivations.

Let us not stop at the disingenuous questioning of the composition of the JSC, and the inclusion of public representatives on the forum, but take it further to the real issue, the questioning of the presence of certain individuals in the JSC. 

This is nothing but political hubris. It may perhaps flatter members of the Economic Freedom Fighters that some regard the EFF president as so powerful that he overwhelms ministers, academics, judges and his fellow public representatives in the JSC in their deliberations and decision-making, but it must be dismissed as desperate and irrational logic.

It is a temper tantrum by an entitled elite, whose political frustrations with Julius Malema are masked behind political commentary.

The JSC is an important organ that must be defended by all those who truly subscribe to democracy, and it must be defended from scrutiny by hypocrites who seek to use public opinion to entrench their political views in judicial appointments.

Sinawo Thambo Is the EFF spokesperson and an MP.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.