DA wants to curb politicians’ influence in appointment of judges

2013-06-30 08:00

The official opposition wants to amend the Constitution to dilute the influence that politicians have on the Judicial Service Commission (JSC).

On Friday, a private member’s bill by DA member of Parliament Dene Smuts was gazetted.

If passed, it would mean that fewer politicians would be allowed on the body responsible for the appointment of judges in South Africa.

The bill also recommends that politicians who are members of the executive, like deputy ministers, be barred from representing the legislature on the JSC.

Smuts said her bill was motivated by the National Development Plan (NDP), which found there was a need for the commission’s composition to be reconsidered.

“The JSC’s role is expanding and consideration should be given to whether it is optimally structured to fulfil its responsibilities,” it says in the NDP.

Smuts’ bill recommends:

» Reducing the number of representatives of the National Assembly from six to four, of which two must be members of opposition parties;

» Specifying that members of the executive cannot represent the National Assembly;

» Reducing the number of representatives of the National Council of Provinces from four to two and adding a specification that one of them be a member of an opposition party; and

» Reducing the number of persons appointed by the president from four to two, and limiting their participation to the appointment of judges other than constitutional court justices, where the president does not have a choice of candidates.

As the commission makes decisions by a simple majority vote, the changes would, in effect, neutralise what critics refer to as a majority political voting block on the JSC.

Members of the legal profession have frequently criticised the JSC for perceptions that its decisions were a foregone, political conclusion, disguised as choices made for transformation purposes.

Chief Justice Mogoeng Mogoeng has defended the commission from such allegations and has pointed out that the appointment of judges in other constitutional democracies is a “politician’s work”.

But at the commonwealth lawyers conference earlier this year, Dr Karen Brewer, the secretary-general of the Commonwealth Magistrates and Judges Association, said the association had conducted research which showed that an ideal model for a judicial appointment body would include “no members of the executive or legislature whatsoever”.

It has also emerged that the commission will oppose a court action by the Helen Suzman Foundation over the significance the body attaches to transformation.

This week, it filed its notice of intention to oppose the foundation’s application, which is arguing that the commission has a “legally flawed” understanding of how to effect transformation in the judiciary.

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