JSC, Inc: Time to think harder about who gets to choose our judges

Judge John Hlophe of the Western Cape High Court remains under a shadow of judicial misconduct accusations that date back a decade and involve an alleged attempt to influence judges dealing with the Jacob Zuma arms deal case.

National Assembly Speaker Thandi Modise is embroiled in an ongoing court case relating to alleged animal cruelty at Modise’s North West farm in 2014.

EFF leader Julius Malema faces charges of common assault and illegally discharging a firearm and is highly likely to find himself in front of the courts on further charges in future — notably when the Hawks’ investigation into VBS Mutual Bank are complete.

Hlophe, Modise and Malema are all part of the team with responsibility for recommending who South Africa’s President should appoint as judges — namely the 23-member Judicial Service Commission (JSC). In the case of Judge Hlophe, he is still listed on the JSC website as occupying the place reserved for a sitting Judge President. Hlophe is, indeed, Judge President of the Western Cape High Court, but complaints about his involvement in the JSC have seen him absent himself from recent proceedings.

As recently as October 2018, however, Hlophe was still participating on the JSC — thereby raising serious conflict of interest questions as it is the JSC that must recommend whether or not he should be impeached for gross misconduct. Hlophe’s is perhaps the most overt case of potential conflict of interest on the JSC. But judicial watchdog Judges Matter argues that even the presence of commissioners embroiled in ongoing litigation — such as Modise and Malema — is questionable.

Says Alison Tilley, co-ordinator of Judges Matter:

“It becomes problematic when you have politicians who are regularly in the courts selecting the judges.” In the case of Malema, for instance, Tilley says:

“In the past, he has quite openly asked candidates for legal opinions on matters in which he is involved. I don’t think that’s okay.”

Modise is the first Speaker of Parliament to simultaneously serve as a JSC member. This is permissible in terms of law but has raised questions as to how she will manage the JSC role in tandem with the prodigious workload required of the Speaker. Modise missed her most recent court date in June 2019 in connection with the animal cruelty charges.

Tilley suggests a certain level of probity should be required of JSC members:

“If you are going to appoint judicial officers, you yourself should be able to meet the [unimpeachable] standards you are appointing to.” In addition to the three commissioners mentioned, a new JSC member, ANC National Council of Provinces (NCOP) MP China Dodovu, was arrested in 2013 and charged with the murder of a regional ANC leader in North West, David Chika. Dodovu maintained his innocence, saying the charges were politically motivated, and was acquitted in 2014.

Former Northern Cape premier Sylvia Lucas also sits on the JSC as a representative of the NCOP. Lucas was found guilty of hate speech and unfair discrimination by the Equality Court in 2015 after using the word “hotnot” in a 2010 speech.

The JSC is made up of the Chief Justice, the Minister of Justice, two further judges, four attorneys and advocates, a law professor, four persons designated by the President (normally lawyers), six members of the National Assembly and four members of the NCOP. Tilley says the question of whether there are too many politicians on the JSC “comes up a lot on the continent”, where surprise is expressed at the heavy political weighting of the commission.

“In most jurisdictions, judges appoint judges,” says Tilley. “What we did, coming out of apartheid and having to basically reconstitute the bench — which we have done, there are no judges now who were judges under apartheid — was that we needed a bunch of people committed to transformation, and it couldn’t be assumed that the previous crop of judges fitted the bill.”

One of the issues now is that the only instruction in law for the composition of the JSC relates to the bodies from which members should be drawn. There are no articulated criteria for commissioners beyond this; nothing clear to guide the National Assembly, for instance, when the body decides which members to nominate to the JSC.

As a result, says Tilley, questions put to judge candidates are now often broadly about political issues rather than judicial performance per se. Although ANC figures dominate the political composition of the JSC, allowance is made for three opposition representatives from the National Assembly: currently the DA’s Glynnis Breytenbach, the IFP’s Narend Singh and the EFF’s Malema. There’s a plot-twist, however. Also currently sitting on the JSC, as one of two advocates representing the Bar, is Dali Mpofu. Mpofu is well-regarded silk, but is also the EFF’s national chairperson.

“Mpofu clearly has a political position,” says Tilley. “What you end up with is effectively two EFF representatives.”

Malema’s line of questioning at the JSC has raised eyebrows in the past; he has quizzed candidates about white supremacy and “the Indian question”, but has also been praised for rigorous and committed participation.

Journalist Niren Tolsi wrote in 2018 that Malema has “blossomed into one of the intellectual leaders at the JSC — to the point that his presence and his questions have challenged his colleagues to sharpen their own minds in understanding why they are there and the seriousness of the job the Constitution requires of them in sifting out judges for appointment”.

The JSC has not sat since Malema’s controversial comments in July alleging capture of the judiciary. “South Africa be warned,” said Malema in response to a judgment that he and his party violated sections of the Riotous Assemblies Act, “something is happening to the judiciary, something wrong is happening to the judiciary.”

In October, the JSC will sit in Midrand to select candidates for recommendation to fill 17 empty positions on the bench. It will be intriguing to see how Malema’s newfound scepticism towards the judiciary manifests itself in his questions to candidates — and whether the freshly constituted JSC can be considered to have fulfilled a mandate that nobody is entirely clear on. DM