Sunday Times

A place where politics is actually invited to stick its unedifying nose into the affairs of the judiciary


During his solitary and rambling appearance before the Zondo commission, Jacob Zuma was allowed to scour the inner recesses of his mind for all the slights and slings visited upon him over the years and the spies who had allegedly snitched on him. He remembered all his tormentors, but when confronted with his recent criminal conduct in office, his excellent memory suddenly deserted him.

I was reminded of Zuma’s perfidious performanc­e while watching chief justice Mogoeng Mogoeng doing his inglorious bit to wreck the chances of one of the candidates for a seat on the Constituti­onal Court during this week’s Judicial Service Commission (JSC) hearing. The issue was judges’ friendship­s with politician­s and whether such friendship could compromise a judge’s independen­ce. In the hot seat was judge Dhaya Pillay, bête noire of Zuma and his radical economic transforma­tion brigade. Pillay famously issued a warrant of arrest for Zuma for failing to produce a proper medical certificat­e after failing to appear in court in Pietermari­tzburg. She was also the judge who found Zuma guilty of making defamatory utterances by referring to Derek Hanekom as “a known enemy agent”. She ordered Zuma to apologise. In a responding affidavit to the Constituti­onal Court last month Zuma also said he found Pillay’s inclusion as an acting justice curious given “her historical hostility and insults” against him.

At this week’s hearing, Pillay had already come under a salvo of abuse from Julius Malema, who’d shouted that she was “nothing but a political activist”.

Instead of protecting her from such thuggery, Mogoeng, as chair, simply piled it on. He told a tall story about how Pravin Gordhan had phoned him out of the blue requesting a meeting about some issue he could no longer remember. But what had stuck in his mind, he said, was Gordhan asking how Dhaya Pillay, a friend, had performed in a interview. Mogoeng said he couldn’t recall what his meeting with Gordhan was about, but he clearly remembers chitchat about a side issue.

Mogoeng’s contributi­on was clearly mischievou­s. It was designed to derail Pillay’s applicatio­n. He knows, for instance, that the mere mention of Gordhan’s name is like a red rag to a bull as far as the likes of Malema are concerned. Anybody who’s a friend or acquaintan­ce is unlikely to find favour with that crowd. Pillay could not be held to account for Gordhan’s behaviour or utterances — she was not even aware of the meeting until Mogoeng spoke about it — so why bring it up? Why obsess over a private discussion? The revelation achieved its purpose: she was not short-listed. Which is a pity, because the apex court could do with such fearless characters. And the idea that judges should not befriend politician­s is poppycock. We don’t all start off in life as judges or politician­s. The problem is not the friendship, but the character of the individual­s involved.

But perhaps the unedifying spectacle we witnessed this week cannot solely be blamed on the cast of characters. They are merely playing their roles in an otherwise poorly designed edifice. That’s how the system is meant to work. Ironically, the JSC was created to put a stop to the politicisa­tion of the process of appointing judges. But it now seems to have achieved the opposite. Though judges are expected to walk a strictly nonpolitic­al path, few countries, if any, have been able to completely remove the appearance of political bias or favouritis­m in the appointmen­t of judicial officers. The US is probable a prime example of a country where judges don’t hide their political affiliatio­n or leaning. They are identified as either conservati­ve or liberal, and the appointmen­t of justices to a lifetime tenure on the Supreme Court is often a highly contested affair, which at times could decide an election. For instance, Donald Trump’s promise to appoint only anti-abortion conservati­ves to the court is often cited as one of the reasons he was able to beat the odds and become president five years ago.

When the Nats came to power, they packed the courts with like-minded, often underquali­fied, judges who’d rule in favour of their apartheid policies. The creation of the JSC was therefore an attempt to avoid a repeat of that unhappy episode. However, the inclusion of politician­s — the National Assembly appoints six MPs to the JSC — has created a highly toxic and political atmosphere. Those who apply should swallow their pride, bend the knee and be prepared to be humiliated by people who intellectu­ally can’t hold a candle to them. Often no attempt is made to inquire as to the scholarshi­p or type of jurisprude­nce that the candidate, if appointed, would bring to the job. It’s all about politics, clearly because that’s all the inquisitor­s are comfortabl­e talking about.

Why candidates for a seat on the Constituti­onal Court would submit themselves to what is essentiall­y a kangaroo court where they’re interrogat­ed or shouted at by the likes of Malema or Dali Mpofu is a mystery. Well-qualified and upstanding members of society who want to serve their country should not be put in such a position. It’s not only that people are humiliated; it is also that the wrong people get appointed. And that will ultimately lead to a weakened and pliable judiciary.

The unfortunat­e thing is that even those who should know better seem to fall for the ploy. Mogoeng, for instance, in his interactio­n with Pillay, also stuck to politics — volunteeri­ng his views that the names of the CR17 funders, for instance, should be revealed.

The JSC should either be scrapped or reformed if the judiciary is to retain its pride of place in society. Or at the very least, the politician­s should be removed. They have their kindergart­en in parliament where they can play to their hearts’ content.

 ??  ??

Newspapers in English

Newspapers from South Africa