Zuma’s role in the judicial system
In a week of heightened suspicion about the president, his appointment of three new members to the JSC attracted scrutiny
President Jacob Zuma’s three new appointments to the Judicial Service Commission (JSC) were rigorous and thorough in their interviewing of prospective judges during its sitting in Midrand this week. Advocates Thandi Norman SC and Thabani Masuku, and attorney Sifiso Msomi pursued themes such as judicial activism, gender transformation of the judiciary, perceived threats to judges’ independence and the ethical fibre of candidates.
Masuku, in particular, questioned candidates on their judgments and other case law – a subject that often gets ignored by the commission, especially when its members are consumed by emotion invoked by race, gender and lazy judges.
Concerns about “judicial capture” were raised after Zuma announced last month that he would be replacing three of the four representatives he nominates to the 23-person commission, which, in effect, picks the country’s judges.
The outgoing trio – advocates Dumisa Ntsebeza SC and Ishmael Semenya SC, and attorney Andiswa Ndoni – had been held up as independent-minded lawyers who voted with their conscience, and not for their constituency, as the JSC’s protocol demands.
Ntsebeza had publicly demonstrated his independence by questioning government’s behaviour with regard to the 2012 Marikana massacre and the ill-treatment of the families of the striking mine workers killed by police.
He represented those families at the commission of inquiry set up to investigate the massacre, as well as the Economic Freedom Fighters in last year’s successful court bid to have former Public Protector Thuli Madonsela’s report on state capture released.
With South Africans expecting the country to catch pneumonia every time Zuma sneezes, scepticism has lingered over his new appointments.
But there was little – in the questions that were asked, or in the results of who had interviewed successfully for appointment, after a secret ballot – to suggest there was a new caucus forming on the JSC that was intent on doing its “master’s” bidding.
With the judiciary routinely finding against government, from high court matters regarding the delivery of textbooks in Limpopo to grant payments at the Constitutional Court, there are mounting concerns that Zuma would prefer to appoint compliant judges. This against the backdrop of Cabinet, the Treasury and the ANC seemingly being “captured” by the president and his cronies.
Zuma has shown a chess grandmaster’s pathology for covering his bases when making appointments that deal with commissions of inquiry or the judiciary. Strategically, he appoints clearly underqualified people, such as Bathabile Dlamini as social development minister, to positions of power. Their gratitude is translated into loyalty and their ineptitude into feeding patronage networks.
He has less influence over the JSC with just four direct appointments, as well as the appointment of the justice minister and seven ANC politicians – who do not appear to be as whipped into a consensus line as previous commissioners were.
Zuma also has a penchant for making appointments from his home province of KwaZulu-Natal. These are parochial relationships, governed by cultural codes of hierarchy and respect.
There is nothing to suggest that Constitutional Court Judge Raymond Zondo is beholden to Zuma, but his KwaZulu-Natal origins, in the president’s estimation, appear to make him a more amenable choice for the post of deputy chief justice – left vacant after Dikgang Moseneke retired last year – than his female colleague, acting deputy chief justice Bess Nkabinde. Zuma recommended Zondo for the position this week.
Nkabinde’s nomination would have helped address imperatives to transform the judiciary by giving the country its first female deputy chief justice – though her term of office at the Constitutional Court ends in December and is nonrenewable.
Msomi, who is from KwaZulu-Natal, asked Zondo about the “attempted capture of the judiciary”. The judge’s answer would have allayed the concerns of his detractors. He described a judge’s role as having to defend democracy and said he, and every other judge, was not on the Bench to win popularity contests but to interpret the Constitution.
If you have paymasters, they may pose as your friends, but they will not respect you, Zondo added. He said being independent was integral to being a judge. Zuma may find a link – sometimes tenuous, sometimes not – between himself and those he chooses to appoint. A perceived sympathy perhaps, or something in their history. When the majority of the judges in the Supreme Court of Appeal ruled that police raids on Zuma, his lawyer Michael Hulley and French arms manufacturing company Thint were lawful in 2007, now-retired Judge Ian Farlam had dissented. He was later appointed to chair the Marikana Commission.
Similarly, now-retired KwaZulu-Natal High Court Judge Chris Nicholson threw out the corruption and fraud charges against Zuma in 2008 – later overturned by the SCA in a scathing judgment – and was later appointed to preside over an inquiry into Cricket SA. Nicholson is, however, a scholar of the game.
Masuku, who did nothing this week to suggest he was anything but independent-minded, has been ever-present in Western Cape High Court Judge President John Hlophe’s legal team in a longrunning, but still unresolved, matter relating to allegations that he had tried to influence Constitutional Court judges to rule in favour of Zuma in a case relating to his fraud and corruption charges – something Hlophe has consistently denied.
So the question of whether a metastatic cancer, rather than the common cold, had been behind Zuma’s sneeze hung over the JSC this week like errant snot.
But these are still early days to make a proper prognosis of the composition of the JSC and whether it can facilitate a potential capture of the judiciary. What is certain is that Zuma has retrained his focus on it and the vital, powerful role it plays in the appointment of judges and our broader constitutional make-up.
Attorney Sifiso Msomi
Chief Justice Mogoeng Mogoeng
Advocate Thabani Masuku
Advocate Thandi Norman SC