First, there is nothing inherently objectionable about a ruling party going for some picks that would largely endorse its designs.

But secondly and very importantly, even the preferred picks must be willing to rule against government where the dictates of fact, legal principle and justice indicate to that effect.

And for a third, there should be keen awareness of the desirability of a representative bench (even if such a move would be geared largely at securing legitimacy for the courts and not at improving the substance of our jurisprudence).

So to tender a tentative general answer to the question of the extent to which a ruling party would be justified in going for sympathetic picks: a ruling party may do so. But in so doing, it must take reasonable steps to (a) promote fairness (b) avoid doing violence to constitutionally protected rights and (c) ensure that it is able to extinguish its constitutional duties.

As I read the cumulative effect of the posts in that respect thus far, the core view seems to be that there is nothing inherently or automatically objectionable about a ruling party going for some sympathetic picks. But even those picks must earnestly appreciate their duty to preside without fear, favour or prejudice. Or as you righly said, they must still be fair.

And I accept the further point which you made. You righly denote that the healthiest bench which comprised more than a single judge would be one which housed judges that tend to take different stances – all of which, as I am sure you will agree, must be ably substantiated.

You do not deny that a ruling party could be justified in seeking appointments of jurists that subcribe broadly to the party’s aims and designs. But as a counterweight, you rightly point out that the above position is quite distinguishable from going for weak judges who would lack the heart and character to rule against government where the merits and constitutional dictates in question demand holdings that are adverse to government.

So I think that you and I could probably agree that one critically important guideline for judicial appointments (even where the ruling party’s preferred picks are concerned) is that the candidate must be willing – and maybe even have shown a willingness to – rule against government where facts and law militate against the state.

I would certainly agree. And I also accept the evidentiary basis for the above view which you provided. That is, I would be inclined to accept that the Mpshe decision for the NPA to abandon its case against Zuma – and other recent happenings as well – tend to suggest that the ANC has shown a propensity for abusing its resources. So maybe we as South Africans need to be keenly aware of the potential for politically motivated appointments to undermine the rule of law.

However, where a government forces through judicial appointments to benefit the ruling party, there would be a problem. For example, if a judicial officer was appointed over much more qualified candidates purely because in the past he had given rulings only in favour of the ANC, which were generally subsequently overturned, this would be problematic.

The other issue to consider is one of checks and balances. For example, the CC has a panel of judges. Lets presume the bench was completely composed of communist / socialist / left-leaning judges. This would likely worry business and foreign investment. However, if the bench was completely composed of capitalist / right-leaning judges, it is possible that justive would be denied to human rights groups bringing actions against big business for a variety of issues. Thus, it is best to have a mix of both.

I would say the healthiest composition of a judicial board, committee or bench would be one of a mix of opposing views which could be debated within the parameters of the applicable legislation, and one where the participants were not tacitly or explicitly expected to toe the party line. Unfortunately, the ANC has shown, for example by firing Vusi Pikoli, that even independent institutions are expected to acquisce to the demands of Luthuli House. And for this reason, I find the notion that the ANC would wish to stack the JSC with sympathetic members very frightening indeed in the South African context.

Now I am not about to describe the quality of the reasoning I mean to advance in support of the view that some self-concern from a ruling party when appointing judges is not necessarily harmful or even undesirable. But I shall offer that reasoning because (a) a submission needs a basis and (b) maybe some people would care to agree or object.

A ruling party may well be justified in trying to retain its political pre-eminence. It may seek to do so through the implementation of certain policies. And it may stand the best chance at realising the implementation of those policies with just a little love from the bench. In a nutshell, it could be that we cannot realistically expect a ruling party to run too great a risk of promoting judicial obstruction of its own ends. And that risk could be quite properly and fairly limited with key appointments.

Further, it is fair to say that the bench should check the executive. But as many who post on this blog have mentioned, a measure of deference from the courts is desirable. That is, can one not argue that judges and politicians can at once work both with and against each other? That courts can let government get on with it at least some of the the time given its superior (we hope) appreciation of various concerns? And could some key appointments not foster a suitable measure of yin and yang? I think this argument could be made.

So I think that one question to which we as a community of debaters may wish to direct some attention is: to what extent, and given what guidelines, is a ruling party justified in seeking sympathetic judicial appointments?

I hope I’m not asking for too much from the powers that be.