Malema and Mpofu lead EFF’s assault on SA judiciary

During the course of the Judicial Service Commission’s Chief Justice interviews last week it became clear that while Julius Malema, Dali Mpofu and Griffiths Madonsela used controversial tactics, it may be important to examine the roots of this opposition.

There was clear evidence presented last week that the trio appear to have an agenda. In particular, that agenda was aimed at preventing Mlambo from being appointed to the position of Chief Justice.

Mpofu, without evidence, introduced a claim of sexual harassment against Mlambo, who strongly denied it. Malema and Madonsela pushed the issue hard, making it the dominant issue of Mlambo’s interview. And despite hours of national attention, in hearings broadcast on national radio and television, and ample opportunity, no evidence was introduced.

Rather, perhaps unable to take it any more, advocate Jenny Cane (who is one of two representatives of the advocates’ profession on the JSC) started to read messages from people in Mlambo’s division, defending him.

Then, immediately after the afternoon tea break, the person chairing the hearing, Deputy Supreme Court of Appeal Judge President Xola Petse, finally ruled that the questions could not be asked and that both the questions and the answers would be struck from the record.

Mpofu and Malema both tried to argue against this.

Then ANC MP Cyril Xaba intervened, saying he agreed with the ruling. He went further, in what appeared to be a statement of principle, saying he wanted to disassociate himself from the entire line of questioning. He was backed up by Sylvia Lucas, also from the ANC, as a representative from the National Council of Provinces.

It seemed obvious that two things had happened.

First, Petse had finally realised that legally he had a duty to disallow this line of questioning (on the grounds that no evidence had been introduced and that Mlambo had not been informed he would be asked about this — as is the rule of these hearings). Second, the ANC caucus in the JSC had decided it had had enough.

But what agenda were Malema, Mpofu and Madonsela following?

Mpofu is in an interesting position on the JSC, on the virtue of his choices to be both an advocate and a politician.

Technically, he was nominated to the JSC by the General Council of the Bar (GCB, representing advocates). The Bar has two representatives. By what’s described as a “gentleman’s agreement”, the bar will appoint one person, and then use its other position to nominate a person put forward by Advocates for Transformation (ATF). Mpofu himself said during the hearings that representing ATF was the larger part of this job. To make this even more complicated, it is understood that there is a dispute over whether the ATF can still remain a full member of the GCB because it has now included lawyers who are not advocates, and thus are not members of the bar.

But Mpofu is also a former chair of the EFF. This leads to questions about which constituency he is representing in these hearings. Is it the EFF or Advocates for Transformation? Does he represent all advocates or only some advocates? How do they feel about his actions?

And do any of these constituencies feel let down by his choice to represent one constituency above theirs?

It is tempting to say that Malema and co are simply opposing Mlambo and Zondo because they see them as a threat.

That may fall into the trap of presuming that the other candidates may be weaker. That is not necessarily the case; all have impressive track records. The country should be proud they are available for the position.

There may be two separate issues here.

One is that it cannot be said that the JSC’s first choice, Supreme Court of Appeal Judge President Mandisa Maya, is a weak candidate.

The second is that it would surely be unjust to Mlambo if the only reason he does not become Chief Justice is that untrue claims were introduced to this process without evidence.

Undoubtedly, this was deliberate. The EFF was using Twitter to drive the conversation while the hearings were under way. It even released a statement claiming that Justice Minister Ronald Lamola had tried to manipulate the process by arranging for Mlambo to serve as an acting judge on the Constitutional Court. 

As Lamola quoted from the Constitution, it is the role of the Justice Minister to liaise with a Chief Justice on exactly this issue.

The EFF’s action was part of a deliberate, concerted campaign.

It may also be important to remember that Malema has a track record of demanding that people respect him, treat him fairly and deny allegations against him, while showing no such respect to anyone else. He will label any criticism of him as racist or biased while hurling insults and unsubstantiated claims against others.

Both Mlambo and Zondo have been at the forefront of a major dynamic in recent times, where judges have been asked to adjudicate political disputes. Zondo has chaired the Zondo Commission and Mlambo has dealt with the Omar al-Bashir case and disputes involving the funding of President Cyril Ramaphosa’s CR17 campaign.

However, there may be another agenda as well.

Zondo has recently shown how important it is for the judiciary to have a leader who can defend it in public. While it has previously been held that “judges speak through their rulings”, in our society that may no longer be enough.

It simply cannot be the case that politicians can hurl abuse, lies and innuendo at judges, and judges must stay silent. The last survey from Afrobarometer shows the impact of this abuse on our judges — the percentage of people in South Africa who trust the judiciary had fallen to 43%.

Considering how our politicians feel that they are not bound by facts, rules or the law, it would be impossible for judges to remain silent — trust in the judiciary could fall even further. This will have very real consequences for our society — if judgments are not respected, they will not be implemented.

That would be the end of our criminal justice system.

It may be important to note that there is simply no downside for Malema, Mpofu and Madonsela here. If Ramaphosa appoints Mlambo, they will have damaged his credibility. If he remains Judge President of Gauteng, they will have damaged his credibility, particularly as he is likely to have ruled in important cases there any way.

It may also be important to consider how important the position of Chief Justice is to the JSC.

The Chief Justice automatically chairs the JSC meetings. There can be no doubt of the importance of this position: the chair decides what is in order, what is out of order, and largely sets the tone of the proceedings.

In other words, the chair of the JSC plays an important role in determining who will be sitting as judges in the long-term future.

These last hearings have shown the damage a weak chair can do — why did Petse take charge only after several hours of allegations were put to Mlambo with no facts? How is it not disqualifying for any presiding person to allow hours upon hours of such ugliness and fundamental disrespect?

https://www.dailymaverick.co.za/article/2022-02-05-jsc-interviews-for-next-chief-justice-were-farcical-thanks-to-mpofu-and-malema/

During the time Mogoeng Mogoeng was chair, there were questions, too. During his last hearings, he failed to be present physically. This surely had an impact on the entire session. He also allowed politicians to press judges about decisions made, involving them personally. 

This shouldn’t be allowed in a country based on respect for the judiciary.

There can be no greater condemnation of Mogoeng’s chairing of that session than the fact the entire JSC decided to hold the hearings again (after the Council for the Advancement of the South African Constitution said it would go to court to challenge the entire session).

If it is the case that there is an agenda against Mlambo and Zondo, it may be that this is what they fear. That an assertive chair would prevent attempts to further weaken the JSC and the judiciary itself.

It would make it much harder to place weak judges on the bench. There are already fears that, in fact, weak judges have been placed on the bench during this period. 

Underlying everything we said is another question: what is it that Malema and Mpofu fear? There can be no doubt that much time and effort was put into weakening Mlambo, so it must matter.

Certainly, the evidence of criminal activity by Malema is well documented, how he and deputy EFF leader Floyd Shivambu received money from the VBS looting. They must be worried about being charged criminally in connection with these grievous crimes, also raising another simple question: How can such people ever be allowed to sit on the JSC? 

https://www.dailymaverick.co.za/article/2019-09-08-vbs-theft-money-laundering-lifes-little-luxuries-julius-malemas-time-of-spending-dangerously/

But there are other people who may be worried about a more assertive judiciary. Certainly, the “RET faction” of the ANC could well be of the same mind as Malema and others. A weaker judiciary would serve their interests.

It cannot be denied that this faction’s interests were advanced in Lindiwe Sisulu’s insult to black judges of “mentally colonised”. As is the fact that many of them have now been, or will be, implicated by the Zondo Commission report.

While a stronger chair of the JSC may make a difference, there may be other people who could also act.

The interventions of Cane, Xaba and Lucas shows that there are commissioners who can speak out. But where were the rest? Why do the judges on the commission remain so silent when this happens? Are they intimidated by Malema? Where was the DA’s commissioner? Glynnis Breytenbach attended virtually; the party’s constituency might wish to know why she chose not to attend such an important session physically. Why did the IFP’s commissioner, Narend Singh, stay so quiet?

The risk to these commissioners is that they become drowned out both in the public interviews and the private deliberations.

There may now be calls from some in the legal profession, civil society groups or even some MPs that the JSC be changed. While this may be tempting, it can also open the door to a less transparent and perhaps less democratic system.

But it is also clear that as long as it involves politicians, the JSC will be used for their agenda. 

In some cases, those agendas will pose a systemic threat to the country. DM

 

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