News & Analysis: Is this the start of a JSC golden age?

2015-04-19 15:00

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The Judicial Services Commission (JSC) may just have come of age this week, passing a crucial test on several interviews which in the past had the potential for ugly political arguments.

Particularly telling was the interview of respected Eastern Cape advocate Selby Mbenenge. He cleared former prosecutor Glynnis Breytenbach – who is wildly unpopular in ANC, SA Communist Party and Cosatu alliance circles – of the disciplinary charges she faced when she was a prosecutor at the National Prosecuting Authority (NPA). Another was the interview of Judge Rammaka Mathopo, who ordered the NPA to hand over the so-called Zuma spy tapes.

Not only were the candidates not forced to face any glaring political attacks about the cases over which they had presided, but both were recommended for appointment to the posts they had applied for – Mbenenge to the Eastern Cape High Court and Mathopo to the Supreme Court of Appeal.

So what has changed in this JSC? Its composition for one thing. A new raft of politicians have taken up spots on the commission after last year’s general election.

Jeff Radebe, a senior member of the ANC who is known to have President Jacob Zuma’s ear, was replaced as minister of justice by Michael Masutha. This automatically gave Masutha the seat Radebe occupied on the JSC. Former ANC chief whip Mathole Motshekga, national council of provinces chairperson Thandi Modise and back-in-favour Thoko Didiza, House chairperson in Parliament, have all taken up ANC positions on the JSC. They replace, among others, Fatima Chohan and Ngoako Ramatlhodi.

It is refreshing to see thus far how political point-scoring and the use of the JSC as a platform to grill candidates about supposed judicial interference in executive functions are, for the time being, in the past.

Economic Freedom Fighters leader Julius Malema has been a valuable addition to the JSC, bringing a much-needed sense of humour to the proceedings and acting as a strong counterpoint to some of the more controversial ANC propositions put to candidates.

The JSC also seems to be more consistent and fair, with candidates who apply for the same position facing a similar line of questioning, and recommendations for appointments seeming to follow the interviews more closely.

Three years ago, Judge Nigel Willis was appointed over Judge Clive Plasket, causing outrage among some legal commentators because both candidates were white, but were given vastly different treatment by the JSC in their interviews. But there’s still a long way to go with real transformation of the Bench. There is only a tiny pool of female candidates for the JSC to draw on.

Judge Trevor Gorven recounted a story about a black woman who had to act as the principal carer of her family, but still managed to put herself through school and university. “She passed her pupillage [a form of internship required to become an advocate] on the first attempt.

“Despite my efforts and those of other people, she was not given a lot of support by private practice and, unfortunately, had to leave the Bar.”

It is probably cold comfort that the JSC, at least, appears to be getting on with project South Africa at a time when the wheels are coming off in so many other places.

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