Freedom Under Law comments on JSC proceedings
8 February 2022
The Judicial Service Commission’s performance last week has left its reputation in tatters. Freedom Under Law has little to add to the resultant chorus of well-directed criticism, not only of the meeting but of the composition of the body. We do, however, want to draw attention to a particular feature of the proceedings as a whole.
The meeting was held for a special purpose. The Constitution requires the President to consult the JSC when considering the appointment of the Chief Justice. President Ramaphosa accordingly consulted the JSC as to the fitness for that office of four senior judges. That the JSC, in ostensible compliance with the request, then conducted a four-day public embarrassment is regrettable (though hardly surprising).
What was indeed surprising was the deft manipulation of the whole process, principally by the two members about whose participation Freedom Under Law had cautioned at the outset. Warning lights flickered soon enough, when Justice Madlanga was asked, wholly irrelevantly to his own fitness for appointment, to comment on the propriety of his colleague Justice Zondo’s conduct in convening a media conference in response to a minister’s remarks about the judiciary – thus seeking to discredit Justice Zondo in advance of his own interview.
A calculated strategy became evident when manifestly friendly and supportive questions were addressed to Justice Maya and, in stark contrast, Judge Mlambo was grilled so crudely that the chairperson admonished Mr Malema for his aggressive manner and tone. It became all the more plain that Justice Maya was the favoured candidate and two strong contenders had to be knocked out, or at least materially handicapped.
These two were skilfully ambushed, Judge Mlambo with a scurrilous and baseless rumour of sexual misconduct, and Justice Zondo with an equally baseless allegation of improperly meeting with the Executive. The character assassins must have known such confrontation was unethical. Certainly Advocate Mpofu, a seasoned practitioner, knows it is unethical to put defamatory accusations to a witness without a sound basis. Confronting Judge Mlambo, and later trying to revive the topic after it had been ruled out by the chair, was a deliberate and persistent smear.
Consistently Mr Malema, once again with no forewarning or substantiation, confronted Justice Zondo with a suggestion that he had somehow acted improperly some years ago when he met with President Zuma after his appointment to head the State Capture commission. The questioning was hostile and the unmistakable implication was impropriety on the part of the judge.
With these two effectively nobbled, and the JSC having decided that their mandate was effectively to pre-empt the President’s constitutional prerogative, Justice Maya was nominated and her nomination hurriedly broadcast – there and then, without the elementary courtesy of first notifying the President.
Nonetheless, we are confident that the President will not succumb to the contrived pressure and will make his own choice from among the four candidates – assured that each of them is eligible for the high office of Chief Justice.
Issued by Johann Kriegler on behalf of Freedom Under Law, 8 February 2022
