The Judicial Service Commission must be reformed (cont.)
There is a need for those in authority to take a close look at the functioning of the Judicial Service Commission (JSC) in order to determine whether it is capable, as constituted at present, of properly and accountably fulfilling its constitutional mandate. The finding it made last week, by a majority - again - in the dispute between the Constitutional Court judges and the Teflon-coated Cape Judge President Hlophe is but a further indication that all is not well with the JSC.
The JSC has two distinct main functions. Firstly, it recommends nominees for judicial office to the President and in this process the politicians appointed to the JSC participate. Secondly, it considers disciplinary complaints involving judges; in such matters the politicians do not participate. At present, and until appropriate legislation is brought into force, the JSC considers that only serious matters involving possible impeachment may be heard by it.
It has long been known and understood that there is an ANC lobby within the JSC, consisting of its politicians and others. This lobby seems willing to do whatever is politically correct. The election of Jacob Zuma, who has the power to appoint four members and did so in his capacity as President, tipped the balance of power in the JSC away from those willing to get on with properly ventilating the claims involving Hlophe.
As regards the JSC’s role in the appointment of judges, it’s noteworthy that over the past two years senior judges with impeccable credentials have publicly voiced their misgivings to the JSC that its "affirmative action chickens", to use one’s words, were "coming home to roost". Other top judges, some only privately, indicate that too much emphasis has been placed on the secondary requirement that demographic features of race and gender must be considered in appointing judges, while the basic requirements of appropriately qualified, fit and proper persons have been neglected in the selections made in the headlong rush to "transform" the judiciary demographically. In many of the appeal records which find their way through the system there is evidence of ineptitude and incompetence on the part of the judges whose decisions are taken on appeal. Apart from special training for a group of women who displayed potential to grace the Bench, very little has been done to address these legitimate concerns.
The work of judges is no walk in the park. There is much drudgery, an excessive amount of reading has to be done and an onerous responsibility for arriving at a just decision rests on all judges. The integrity, probity and impartiality of our judiciary ought to be above suspicion; a commitment to the values of the Constitution ought to be a given as also the ability to adjudicate properly and fairly "without fear, favour or prejudice".
The country needs a legitimate judiciary. It obviously can not remain "pale and male", nor has it. However, if cosmetic changes are wrought to it without due regard to the ability, fitness for office and experience of candidates simply for the sake of demographic "transformation" above all else - by appointing black and female judges who are not in possession of appropriate skills, and are therefore not proper candidates - then the legitimacy of the judiciary is undermined rather than served. The recent TNS survey, which shows that the metropolitan public now has a much lower opinion of the independence of the judiciary than it did two years ago, needs to be considered carefully with a view to ascertaining what it is that has created so negative a perception of the smallest, weakest and most vital organ in our young constitutional democracy. Without a vibrantly competent, institutionally and personally independent judiciary which enjoys credibility and legitimacy among the entire populace there is little hope for the survival of the rule of law and its checks and balances on the exercise of power so carefully crafted by the founders of our Constitution. The JSC is a vital component of the maintenance of constitutional values and principles in all its functions.
The most palpably inglorious part of the record of the JSC is in its handling of disciplinary cases. The 10 person JSC disciplinary committee, by a majority (whose size and composition are inexplicably not disclosed despite the requirements of openness, transparency and accountability which ought to inform the JSC’s public activities) has once again found a way to keep Hlophe safe from cross-examination. The convoluted and patchy reasoning upon which this conclusion is based in its rambling finding does not bear scrutiny and compares most unfavourably with the equally anonymous, but more pithy and intelligible minority finding. The minority correctly regards the allegations of attempting to influence the outcome of the Zuma appeals to be worthy, if proved, of founding an impeachment and considers that the disputed issues ought to have been tested in an open hearing in which the witnesses on either side are cross examined.
In a previous matter Hlophe lived to judge another day with unanswered questions concerning corruption, tax evasion, contempt of court and a propensity for mendacity left swirling around his head. On this occasion his allegations of a political conspiracy against him by the judges of the Concourt are dismissed by the majority, without affording him the opportunity of putting his case, during cross examination, to those allegedly conspiring against him. Judge Bess Nkabinde is branded as "inconsistent" in her recall of events without ever been given the opportunity by the majority of explaining apparent or perceived inconsistencies. The serious disputes of fact between her and Hlophe are left hanging in the air to blight their respective careers and prejudice their prospects of promotion. One of them is clearly lying about the content of their conversation; it is intolerable that whichever one it is should remain in office. The entire affair reeks. It leaves Hlophe under a cloud of suspicion which could only have been dispersed by way of a full hearing. The outcome must land as an insult to the 13 judges of the Concourt who, after careful consideration, courageously complained in concert about Hlophe's conduct. The preliminary proceedings were farcically undertaken after the JSC had already seen the need for cross-examination a year ago (but u-turned on this when its personnel changed after Zuma became President.) The fact that Hlophe expressed ignorance of the well established and time honoured convention that judges do not discuss matters with colleagues who are seized of a matter, speaks volumes about his competence, experience and suitability for promotion, but is astonishingly misused as an exculpatory factor by the majority. It remains to be seen whether review proceedings are instituted to set aside its misdirected finding and to substitute for it the well reasoned conclusion reached by the minority.
The task facing those in authority is to fashion a system in which the clumsiness on display in the majority finding is not replicated, the political influence in the workings of the JSC is neutralized and a less cumbersome method of adjudication, perhaps by a smaller panel of retired judges, is created. Consideration can simultaneously be given to the sound suggestion of former President Motlanthe that the JSC take on the further duty of processing applicants for the post of National Director of Public Prosecutions. In this way the procedure becomes more objective and less politically charged. Lamentably, until the politicking in the JSC is ended, more unfortunate and unsatisfactory curate’s egg outcomes of the kind seen last week may be anticipated.
Paul Hoffman
28 August 2009
