ANC pushes for its kind of judges
Party’s deployees to JSC to be told to review criteria for bench
THE ANC has launched what has been slammed as a new assault on the judiciary, proposing that the process followed to appoint judges be reviewed.
The party says it wants its deployees on the Judicial Service Commission to push for a re-look at “the appointment criteria used” by the constitutional body, headed by Chief Justice Mogoeng Mogoeng, to appoint judges to the superior courts such as the high court, the Supreme Court of Appeal and the Constitutional Court.
But opposition MPs and civil society bodies have vowed to fight the ANC’s plans, saying they were an attempt to create “a subservient judiciary”.
The proposal is contained in the ANC’s discussion document on peace and stability, which has been prepared for deliberations at its policy conference, scheduled to take place in Johannesburg in June.
The ANC has long complained about the judiciary, claiming that some judges were “counterrevolutionary” and opposed to its transformation agenda.
The complaints have followed countless court losses suffered by government departments and key state institutions in politically charged cases.
In the discussion document, the ANC says: “It’s important that judges with a progressive philosophy and who advance judicial activism to give effect to social transformation be appointed to the bench.
“The ANC, through its deployees in the JSC, must influence the review of appointment criteria used by the JSC and ensure intense scrutiny and evaluation of candidates for judicial office.”
The discussion document further states that “appointing judges of colour to the bench” will not, on its own, reverse the damage done by apartheid and colonialism to the legal system.
“This must be accompanied by the radical transformation of the legal architecture that will promote progressive jurisprudence and the change of attitudes and mindset in the interpretation and application of the law.”
The document is a product of the ANC national executive committee subcommittee on peace and stability, headed by Defence Minister Nosiviwe Mapisa-Nqakula.
Her spokeswoman, Joy Peter, had not responded to questions by the time of going to press.
ANC spokesman Zizi Kodwa said he could not comment on a document that has not been publicly released, and would only be released next week.
“You might find that there’s a change to what you have because they are going through an editing process,” he said.
The JSC is mandated by the constitution to oversee the appointment of judges by interviewing potential candidates and make recommendations to the president.
It has 23 members, including MPs, senior judges, representatives of the legal profession and legal academics.
The ANC has considerable influence on the JSC as it is represented by four MPs, the minister of justice and another four members designated by the president.
EFF leader Julius Malema, who also sits on the commission, said his party would not support “the ANC’s deliberate attempt to capture the judiciary”.
He said: “What are they saying to all the judges we appointed since 1994?
“Chief Justice Mogoeng was their candidate, now that he’s sticking to the law, he’s no longer pushing a ‘progressive philosophy’, which means eating the curry of the Guptas.
“That is not going to happen with the judiciary, they will not succeed in the capturing of the judiciary. They have to come and present a superior logic on why we should change the progressive way, the democratic way, in which the JSC is appointing judges.”
Lawson Naidoo, spokesman for the Council for the Advancement of the South African Constitution, said that while it was not opposed to the appointment of progressive judges, the council was worried that the ANC would use this to create a more pliable judiciary.
“This is beginning to sound like a sour-grape story from the ANC given that government tends to lose a lot of court cases,” he said.
“This is about trying to create a bench more subservient to the interests of the executive, but what we actually require is a judiciary that puts the interests of the entire society first.
“To a large extent, many could argue that the judiciary has actually been one of the shining beacons of our democracy, especially in recent times.”
The DA’s representative on the JSC, MP Hendrik Schmidt, echoed Naidoo’s views, saying his party would take any legal step necessary if the ANC’s proposal posed a threat to constitutionalism.