Politicians should not be sitting on the JSC as commissioners
IN TERMS of section 178(1)(g) of the Constitution, six people designated by the National Assembly must form the membership of the Judicial Service Commission (JSC).
This critically vital body is the selection committee that aids in the appointment of judges in South Africa, notably to the Constitutional Court.
Of late, our judiciary has been under siege in many aspects – whether it is criticism levelled at the chief justice or by orders granted that may seem as pretentious as they are controversial or by the very appointment of judges themselves.
But what is becoming undeniably evident is that the highest court in the land is being plagued to adjudicate matters involving political issues and actors who are the actual legislators in the country.
Ordinarily, this should not be a problem as the independence and impartiality of the judiciary is considered an inviolable pillar of law and order and it is this sacrosanctity that invites confidence in the public of fair, equal and accountable justice – which should be the case.
Of course, any citizen, political or not, should and must have access to this institution as a matter of right for any matter they feel aggrieved on, but the waters are becoming muddied as the “deciders of the decider” are becoming embroiled in actions that raise many questions.
Parliamentarians (National Assembly) should not form part of the membership of the JSC.
The argument is predicated on two issues: the first being that of the Judge President of the Western Cape High Court John Hlophe, who has been found guilty of gross misconduct by the judicial conduct tribunal.
His fate will eventually be decided by a two-thirds majority in the National Assembly – if it comes to that, before being deliberated on by the JSC, which will recommend such removal if it deems it necessary.
Judge Hlophe is perceived to have had some political affinity that may have influenced his misdemeanour and the reality exists that he may well be exonerated by those in the National Assembly who may be sympathetic to such affinity, or political figures that aided in such misdemeanours.
It will always remain a risk that such a possibility exists.
The second issue is that of Julius Malema.
Malema is no jurist, nor does his understanding of classical jurisprudence bear any semblance to someone who can adequately critique the selection of an apex judge.
His crass political reasoning steeped in a narcissistic yet puerile series of questions to potential candidates in which he obsesses on the matter of race diminishes any cogency in terms of whether the candidate is fit for purpose, but rather he portrays himself as a vengeful racist bent on making good for past inadequacies of the heinous system of apartheid.
He is a commissioner of the JSC – not a judge pronouncing sentence on candidates because of their hue, but sadly his outbursts against the judiciary based on his immitigable political dogmas renders him unfit to decide on the deciders.
His political agenda is clear - yet the purpose of appointing judges is to ensure fair, open and accountable justice – where merit and capability of interpreting and executing the law should be paramount based on the matters before them – not their race.
The interrogation of candidates at the JSC by the likes of Malema devalues in many respects the authenticity of what such an event entails because the political agenda runs rampant. This must cease immediately to bolster public confidence.
We must be clear: we cannot turn back – we need to march into the future with a bold and resolute determination to make change constant, but always fair – to make the uncomfortable and the inconvenient decisions not for the sake of political expediency but for the sake of progress and for the pursuit of a better, safer and more just judicial system bereft of political influence and racial prejudice.
NARENDH GANESH | Durban North