Judges cross-examined on political matters
A BARRAGE of political questions during this week’s judicial interviews affected the depth of interrogation of the four candidates vying for a single Constitutional Court post.
Alison Tilley, of the Judges Matter Coalition, said: “I think it is unfair for these candidates, who were to be interrogated on their records, depth and experience, to then have the argument between the executive and judiciary played out.”
The interviews, on Thursday, took place just a day after Chief Justice Mogoeng Mogoeng made the unprecedented move of seeking a meeting with President Jacob Zuma over the rising tension between the judiciary and the executive.
This has been stoked by the government’s decision last month to allow Sudanese President Omar al-Bashir to leave South Africa at the start of legal arguments in the High Court in Pretoria over whether he should be handed over to the International Criminal Court on charges including genocide.
Tabeth Masengu, a researcher at the University of Cape Town’s Democratic and Governance Rights Unit, said: “The questions asked were definitely prompted by the ongoing tension. The al-Bashir matter was the elephant in the room.”
But she said the topic was unavoidable.
“We had expected separation of powers and judicial review to feature prominently in these interviews. I don’t think it hampered the interview process per se; the candidates answered the questions very well and hopefully their answers provided clarity for the minister and others,” she said.
The hopefuls are Supreme Court of Appeal justices Nonkosi Mhlantla, Zukisa Tshiqi and Leona Theron, and KwaZulu-Natal high court Judge Dhaya Pillay.
Justice Mandisa Maya was also interviewed for the position of deputy president of the Supreme Court of Appeal.
Zuma will make the final decision.
Advocate Michael Masutha, who as justice minister is the national government’s representative on the Judicial Ser- vice Commission, was the key protagonist, asking questions about the consequences of judges’ decisions.
He asked several candidates: “I know the expression that ‘justice must prevail, even if the heavens are to fall’, but what if the heavens actually do fall? Shouldn’t the judge consider that factor — that if this decision was factored, the heavens indeed would fall?”
But the candidates easily navigated around Masutha’s question.
Candidate after candidate reaffirmed the independence of the judiciary and the separation of powers.
They said judges should base their decisions on the facts before them and the law, without concerning themselves with outside influence.
Masutha asked the candidates: “Would you agree with me . . . that judges themselves can be fallible and can arrive at decisions which are wrong, but more so — dangerously wrong in the sense that the impact of their decision in a particular situation could lead to grossly untenable situations?”
Even Mogoeng, who chaired the interviews, was unsure about what was meant by “dangerously wrong”.
The climax in Masutha’s questioning came towards the end of the session, when he posed a “hypothetical question” dealing with court orders and when the backs of one or more parties are against the wall, with no further recourse.
He asked Tshiqi: “Let’s say there is an interim order, even if it lasts for a few hours, but during that intervening period its effect would be to pose a real danger . . . Under the circumstances, the litigant for that duration has no recourse.”
The question drew a chuckle from Mogoeng, who told Tshiqi: “Don’t be so nervous, the minister is not talking about alBashir.”
EFF leader Julius Malema was more direct when he asked Maya: “Do you think it is correct for the executive to deploy judges in the judiciary?”
And his next question to Maya was point-blank: “How many interactions have you had with the president?”
None, was her response.
❛ Don’t be so nervous, the minister is not talking about al-Bashir