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“In my years on the Bench and thereafter as a member of Freedom Under Law and now the chairman of its Board, I and many others have sought to arrest the decline of the Judicial Services Commission (JSC), by raising our voices. That it has increasingly abused its power and became captured by political interests has been laid bare. It was not only the politicians on the JSC who were responsible for this. Some judges have acquiesced in this development.
“Senior lawyers with vested interests have not only watched, but also been complicit. Some, the storied Justice Edwin Cameron recently described as “dangerous”. He trenchantly commented that: “They seek to propel (an) agenda. They are skilled liars, dissemblers, manipulators and propagandists. (They) employ the instruments of legal practice to bedevil, confuse and dismay… They have even used the JSC to wreck the advancement of conscientious and capable candidates for judicial preferment.”
Meanwhile, retired Supreme Court of Appeal Judge and chairperson of the board for Freedom Under Law, Azhar Cachalia, said at a public lecture at the Rhodes University Law Faculty on Tuesday night: “The consequence of the combined conduct of these malevolent actors, often aided and abetted by the insipid amongst them, has been a loss of public confidence in the JSC, an institution that is vital to ensure the competence of the judiciary and protect its independence from political and other interests. Without this the rule of law is imperilled.”
The full lecture is available here.
“I ask Rhodes University and the graduates from its iconic Law Faculty to be vigilant, to speak out, and not to look the other way,” Cachalia said.
Also read in Daily Maverick: Disgraced judge John Hlophe will serve on JSC after GNU fails to come together
“The Zondo Commission’s investigations revealed how key role players enabled State Capture to take hold in state entities, which Parliament, then dominated by a single party, ignored. The president undertook to act on its recommendations.
“When the seventh Parliament was elected there was an expectation that it would act to fix the institutions that required fixing. It was hoped that Parliament would designate suitable persons to serve on the JSC – hardly a difficult task.”
Cachalia said Parliament had failed dismally by appointing two members who clearly were not suitable, the EFF’s Julius Malema and impeached judge, now MK party MP John Hlophe.
Also read in Daily Maverick: Fix the JSC rather than banning John Hlophe from serving on it
“Malema has consistently abused his authority on the JSC. He has also been found guilty of breaching the Members of Parliament Code of Conduct; he had inappropriately questioned a judge being interviewed by the JSC in 2021 about a ruling the judge made against him (Malema) in a defamation action – a matter in which he had a personal interest. In that matter, the judge had held that Malema had defamed Mr Trevor Manuel by causing falsehoods about him to be published.
“Turning to Hlophe again, once the Constitutional Court had invalidated (former president Jacob) Zuma’s quest to lead his newly formed party, uMkhonto Wesizwe (MK), in Parliament due to his criminal conviction for contempt of court, MK dubiously anointed the disgraced Hlophe to be its parliamentary leader, and then cynically nominated him to be one of Parliament’s representatives on the JSC.
“Freedom Under Law and several other non-governmental organisations wrote to the Speaker to register their indignation. They cautioned that Hlophe’s appointment would subvert Parliament’s duty to guard the independence of the judiciary and be legally assailable. The Speaker responded that there was no legal requirement for persons appointed to the JSC to be ‘fit and proper’, nor any other legal impediment to his appointment. With respect, she was ill-advised,” Cachalia said.
Guilty of gross misconduct
“The National Assembly thus proceeded to select Hlophe to serve on the JSC – the very body that found him guilty of gross misconduct and unfit to be a judge. As a member of the JSC, he will now have to decide whether candidates for judicial office meet the high ethical standards to be appointed as judges – standards that he felt no need to adhere to as a judge. This is akin to asking the fox to guard the henhouse.
“We have a duty to object to this cynical exercise of public power, and Freedom Under Law has approached the courts to invalidate his appointment on at least three grounds:
“First, the National Assembly was incorrect that it was bound to accept MK’s nomination of Dr Hlophe. It has a discretion to appoint members who are ‘suitable’ to serve on the JSC, which it failed to exercise. Second, section 165(4) of the Constitution obliges Parliament to take steps to protect the independence of the judiciary and the public’s confidence in it. Appointing Hlophe to the JSC is completely at odds with that obligation.
“Third, appointing Hlophe was irrational and unreasonable. A decision is irrational if it undermines the purpose for which it was taken. The core purpose of the JSC is to foster public confidence in the JSC and, in turn, the individuals who are selected to be judges. The very reason that Hlophe was removed as a judge was because the JSC and the National Assembly found that his continued involvement in the judiciary would threaten the public’s confidence in it. Appointing Hlophe to the JSC means that he is again involved in the judiciary – in the key role of interviewing and deciding on the appointment of new judges – and that this involvement, too, threatens the public’s confidence in the judiciary,” Cachalia said.
“We seek an urgent court hearing to reverse this untenable development. The DA and several other non-governmental organisations shall also be asking the court to invalidate this appointment.
Competence and integrity
“South Africa’s democracy is anchored by its Constitution and the rule of law. Judges are the guardians of both. They derive their authority from their competence and their integrity. Without either, they have none,” he said.
“The Judicial Service Commission has two functions: It appoints judges and investigates complaints against them for misconduct. The JSC must protect the independence of the judiciary by appointing competent and ethical persons, and safeguard it from undue political interference. It follows that those appointed to the JSC to perform these functions must themselves be ‘fit for purpose’.
“For just over a decade the JSC functioned without significant complaint. South Africa took its place among leading democratic countries lauded for its progressive Constitution and independent judiciary.
“There was, however, increasing disquiet about the functioning of the JSC. The application of Section 174 (stating the requirement that a judge must be a fit and proper person) and the guidelines were ignored and distorted, giving rise to arbitrary decision making. The National Development Plan of 2011 warned that there was little consensus between the JSC and the legal fraternity concerning the attributes required for appointment to the Bench. More alarmingly it observed that the JSC was becoming hamstrung by political and vested interests within the profession.
“Sadly, instead of acting on these concerns the JSC allowed the situation to worsen,” Cachalia said. DM
