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

CityPress - - News - NIREN TOLSI news@city­press.co.za

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

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