Zuma’s role in the judicial system

2017-04-09 06:00
The Chief Justice of South Africa is the most senior judge of the Constitutional Court and head of the judiciary of South Africa Mogoeng Mogoeng. Picture: Lucky Nxumalo

The Chief Justice of South Africa is the most senior judge of the Constitutional Court and head of the judiciary of South Africa Mogoeng Mogoeng. Picture: Lucky Nxumalo

Multimedia   ·   User Galleries   ·   News in Pictures Send us your pictures  ·  Send us your stories

President Jacob Zuma’s three new appointments to the Judicial Service Commission (JSC) were rigorous and thorough in their interviewing of prospective judges during its sitting in Midrand this week. 

Advocates Thandi Norman SC and Thabani Masuku, and attorney Sifiso Msomi pursued themes such as judicial activism, gender transformation of the judiciary, perceived threats to judges’ independence and the ethical fibre of candidates.

Masuku, in particular, questioned candidates on their judgments and other case law – a subject that often gets ignored by the commission, especially when its members are consumed by emotion invoked by race, gender and lazy judges.

Concerns about “judicial capture” were raised after Zuma announced last month that he would be replacing three of the four representatives he nominates to the 23-person commission, which, in effect, picks the country’s judges.

The outgoing trio – advocates Dumisa Ntsebeza SC and Ishmael Semenya SC, and attorney Andiswa Ndoni – had been held up as independent-minded lawyers who voted with their conscience, and not for their constituency, as the JSC’s protocol demands.

Ntsebeza had publicly demonstrated his independence by questioning government’s behaviour with regard to the 2012 Marikana massacre and the ill-treatment of the families of the striking mine workers killed by police.

He represented those families at the commission of inquiry set up to investigate the massacre, as well as the Economic Freedom Fighters in last year’s successful court bid to have former Public Protector Thuli Madonsela’s report on state capture released.

With South Africans expecting the country to catch pneumonia every time Zuma sneezes, scepticism has lingered over his new appointments.

But there was little – in the questions that were asked, or in the results of who had interviewed successfully for appointment, after a secret ballot – to suggest there was a new caucus forming on the JSC that was intent on doing its “master’s” bidding.

With the judiciary routinely finding against government, from high court matters regarding the delivery of textbooks in Limpopo to grant payments at the Constitutional Court, there are mounting concerns that Zuma would prefer to appoint compliant judges. This against the backdrop of Cabinet, the Treasury and the ANC seemingly being “captured” by the president and his cronies.

Zuma has shown a chess grandmaster’s pathology for covering his bases when making appointments that deal with commissions of inquiry or the judiciary. Strategically, he appoints clearly underqualified people, such as Bathabile Dlamini as social development minister, to positions of power. Their gratitude is translated into loyalty and their ineptitude into feeding patronage networks.

He has less influence over the JSC with just four direct appointments, as well as the appointment of the justice minister and seven ANC politicians – who do not appear to be as whipped into a consensus line as previous commissioners were.

Zuma also has a penchant for making appointments from his home province of KwaZulu-Natal. These are parochial relationships, governed by cultural codes of hierarchy and respect.

There is nothing to suggest that Constitutional Court Judge Raymond Zondo is beholden to Zuma, but his KwaZulu-Natal origins, in the president’s estimation, appear to make him a more amenable choice for the post of deputy chief justice – left vacant after Dikgang Moseneke retired last year – than his female colleague, acting deputy chief justice Bess Nkabinde. Zuma recommended Zondo for the position this week.

Nkabinde’s nomination would have helped address imperatives to transform the judiciary by giving the country its first female deputy chief justice – though her term of office at the Constitutional Court ends in December and is nonrenewable.

Msomi, who is from KwaZulu-Natal, asked Zondo about the “attempted capture of the judiciary”. The judge’s answer would have allayed the concerns of his detractors. He described a judge’s role as having to defend democracy and said he, and every other judge, was not on the Bench to win popularity contests but to interpret the Constitution.

If you have paymasters, they may pose as your friends, but they will not respect you, Zondo added.

He said being independent was integral to being a judge.

Zuma may find a link – sometimes tenuous, sometimes not – between himself and those he chooses to appoint. A perceived sympathy perhaps, or something in their history. When the majority of the judges in the Supreme Court of Appeal ruled that police raids on Zuma, his lawyer Michael Hulley and French arms manufacturing company Thint were lawful in 2007, now-retired Judge Ian Farlam had dissented. He was later appointed to chair the Marikana Commission.

Similarly, now-retired KwaZulu-Natal High Court Judge Chris Nicholson threw out the corruption and fraud charges against Zuma in 2008 – later overturned by the SCA in a scathing judgment – and was later appointed to preside over an inquiry into Cricket SA. Nicholson is, however, a scholar of the game.

Masuku, who did nothing this week to suggest he was anything but independent-minded, has been ever-present in Western Cape High Court Judge President John Hlophe’s legal team in a long-running, but still unresolved, matter relating to allegations that he had tried to influence Constitutional Court judges to rule in favour of Zuma in a case relating to his fraud and corruption charges – something Hlophe has consistently denied.

So the question of whether a metastatic cancer, rather than the common cold, had been behind Zuma’s sneeze hung over the JSC this week like errant snot.

But these are still early days to make a proper prognosis of the composition of the JSC and whether it can facilitate a potential capture of the judiciary. What is certain is that Zuma has retrained his focus on it and the vital, powerful role it plays in the appointment of judges and our broader constitutional make-up.

It's not all serious

- Chief Justice Mogoeng Mogoeng’s shiny new office in Midrand has all the comfort befitting his position in our republic (minus the 15 or so computers that were recently stolen). There is a separate building for conferences and training, a dining area for guests and enough armed security guards wandering around to wait out a siege.

The urinals, however, had most regular-sized people crouching low to hit their target, and left the weak-kneed wondering if their positioning was fitted to spec – that of the vertically challenged chief justice’s stream – lending a new meaning to his favourite topic: “efficient case-flow management”.

- Public Services and Administration Minister Faith Muthambi has a disturbing grin – like a crocodile leering at an alligator-skin suitcase with misguided lascivious intent.

This was used to good effect at the Judicial Service Commission when Muthambi, as acting justice minister, filled in for her Cabinet colleague Michael Masutha.

Muthambi meandered through the week with a glint of mischief in her smile, simultaneously disarming and bewildering interviewees with her questions.

But the erstwhile communications minister demonstrated a wonderful sense of comedic irony when asking Justice Ray Zondo, who is organising an upcoming conference for judges, how he would ensure “prudent financial management” in its running – to giggles from the public gallery.

Zondo responded that he had qualified “financial people” to eradicate malfeasance. Muthambi was furiously scribbling notes during his answer – perhaps readying a memo to the SABC board, over which she had political oversight during a period of unchecked misspending that saw it posting a net loss of R411m last year. 

– Staff reporter

Read more on:    jsc  |  jacob zuma

Join the conversation!

24.com encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions.
NEXT ON NEWS24X

Inside News24

 
Behind the sparkle

Alluring, beautiful and timeless - diamonds are some of the most sought after gems in the world and are a true testament of everlasting brilliance. Let us take you behind the sparkle to show you the history behind this coveted jewel.

Embracing sustainability in tobacco agriculture

In Sub-Saharan Africa, farming represents a subsistence lifestyle for millions of people. In recent years though, the development of farming into an economic activity has made a real change in how the land is used in providing for the population.

/Africa
Traffic Alerts
Traffic
There are new stories on the homepage. Click here to see them.
 
English
Afrikaans
isiZulu

Hello 

Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.


Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire 24.com network.

Settings

Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.




Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.