Zuma has his hands full with 4 ConCourt candidates, judicial row

2015-07-09 21:11
Jacob Zuma. (GCIS)

Jacob Zuma. (GCIS)

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Johannesburg - President Jacob Zuma has a tough task ahead of him after all four women interviewed on Thursday for the vacant seat at the bench of the Constitutional Court were recommended as suitable candidates for the job by the Judicial Services Commission.

At the same time he will have to defuse the dismay that judges have expressed over allegations that they are interfering in matters of state and possibly being influenced into verdicts.

Justices Nonkosi Zoliswa Mhlantla, Dhayanithie Pillay, Leona Valerie Theron and Zukisa Laura Lumka Tshiqi, spent the day being grilled by the commissioners for the post left vacant by the retirement of Justice Thembile Skweyiya.

A fifth, Justice Mandisa Muriel Lindelwa Maya, has also been nominated by Zuma for the vacant position of Supreme Court of Appeal deputy president.

The interviews for the Constitutional Court were tough, with the commissioners keen to seek the candidates' views on a range of contentious issues.

Although the recent matter of Sudanese President Omar al-Bashir leaving the country in spite of a court order preventing his departure was not specifically mentioned, it was the elephant in the room when they were asked how they felt about court orders not being adhered to.

Occasionally Chief Justice Mogoeng Mogoeng, who had to go through the same daunting interview process in Kliptown before he was appointed, alluded to comments by some political leaders such as SA Communist Party secretary general Blade Nzimande that the judiciary was interfering with the state through its far reaching judgments. 

ANC secretary general Gwede Mantashe and Deputy President Cyril Ramaphosa have also chimed in to say that people have the right to take issue with the judiciary, and that the judges need to know what people think of them. 

A trigger may have been when Judge Thokozile Masipa, delivering an address to the Human Rights Law Association in London last week on the Oscar Pistorius trial which she presided over, said that the South African government was disregarding the law in certain instances.  

On Tuesday, judges held an extraordinary heads of court meeting and afterwards said they wanted a meeting with Zuma to discuss the claims against them. In a statement, they rejected the claims.

"No arm of the state is entitled to intrude upon the domain of the other. However, the constitution requires the Judiciary ultimately to determine the limits and regulate the exercise of public power."

They said judges, like anyone else, should be susceptible to constructive criticism, but it should be fair, specific and not gratuitous.

Police Minister Nathi Nhleko has also reportedly told senior managers at the Independent Police Investigative Directorate that there were "interesting" elements in the judiciary who "meet with characters to produce certain judgments".

Zuma has since said he respects the independence of the judiciary and will attend to the judges' concerns when he returns from a trip to Russia.

Zuma himself is the subject of a court application relating to an application to review the dropping of corruption charges against him shortly before he became president.

Although the commissioners did not go into specifics, candidates were asked whether they thought there was interference, and their replies were that the rule of law should hold, and that disputes should be resolved through appeals.

They also rejected the notion of ignoring court orders that certain parties found unfavourable or flawed, saying that was what the appeal process was for.

"Substituting an executive decision was not necessarily encroaching on the executive's power, said candidate Mhlantla, citing a Constitutional Court finding that proper process had not been followed when former National Director of Public Prosecutions Menzi Simelane was appointed. This was after an application to the court by the DA. 

"If there were flaws in the process, the court will have the power to interfere," she said.

But it was the issue of women, and particularly black women on the bench, which dominated many of the questions.

The JSC has often expressed concern that more women candidates are not put forward for the job of judge, in particular black women.

And then, it boiled down to whether an Indian or coloured woman should be appointed because they had not been represented at the Constitutional Court in its 21 years.

Pillay, a judge in KwaZulu-Natal said: "Speaking personally, I hope I get appointed because of what I can deliver and not because of any other criteria.

"The candidate best able to deliver on the core competence and requirements of the court should be the one appointed."

Tshiqi, whose name some commissioners mispronounced as "Cheeky" said: "All of us are black females. You are given a bag that has four black females because that is the word the law of this country uses. You choose what you consider as a commission to be the best candidate and that is your call."

But she was thrown a curveball in her interview when asked why her cellphone bill was being paid by the firm of attorneys in which she is a partner.

She started explaining it was an arrangement they had, but Mogoeng interrupted her, saying she must not even try to justify it.

"That payment is wrong - you must put an end to it. Reflect on it, it's a wrong payment, you must put an end to it."

She said she had declared it, but now saw it was wrong.

The commission held a closed door meeting to deliberate and later Commissioner Dumisa Ntsebeza confirmed to News24 that all five had been recommended to Zuma, who will now have to make choices.

Read more on:    jsc  |  constitutional court  |  jacob zuma  |  johannesburg  |  judiciary

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