Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
There is nothing constitutionally amis with the move by the ANC to replace the lone opposition nominee of the National Council of Provinces (NCOP) on the Judicial Services Commission (JSC) with one of its own delegates. But the move will strenghten the view that the ANC is following a “good cop” “bad cop” routine with the judiciary.
On the one hand President Jacob Zuma has been saying all the right things about the independence of the judiciary (and good for him, too), but it is unclear whether behind the scences the ANC and the government it leads (of which Mr Zuma may or may not be a mere figurehead) is not trying to “pack” the JSC and then the courts with “sound” people that would not be stupid enough to find against the ANC and its leaders when they are charged with corruption or challenged about the dereliction of their constitutional duties.
Now that the ANC has replaced the DA delegate from the NCOP, all four of the NCOP representatives on the JSC are now ANC members. Section 178(1) of the Constitution states that the JSC consists of both lawyers and politicians.
There are usually either eight or nine independent lawyers on the JSC: the Chief Justice, who presides at meetings of the Commission; the President of the Supreme Court of Appeal; one Judge President designated by the Judges President; two practising advocates nominated from within the advocates’ profession to represent the profession as a whole, and appointed by the President; two practising attorneys nominated from within the attorneys’ profession to represent the profession as a whole, and appointed by the President; one teacher of law designated by teachers of law at South African universities; and when considering matters relating to a specific High Court, the Judge President of that Court.
The other fifteen or sixteen members may be lawyers but they are all in effect political appointees (although three of them must be opposition party members serving in the National Assembly while some of the President’s four appointees have in the past been independent minded and well respected lawyers) and they are: the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member; six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly; four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces; four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and when considering matters relating to a specific High Court, the Premier of the province concerned, or an alternate designated by each of them.
There is therefore a very precarious balance on the JSC between party political appointees on the one hand and lawyers (always committed to transformation, of course) on the other. Maybe the move by the ANC to replace the DA representative from the NCOP with one of its own members has more to do with the ANC vindictiveness towards the DA or its need to reward a loyal cadre for services rendered than with wanting to pack the JSC with people that would force through the appointment of pro-executive yes men and women to the bench.
If President Zuma does not replace the four members on the JSC that serves at the pleasure of the President (which can be replaced at any time), or if he replaces them with well respected lawyers, the hullaballoo about the replacment of the DA’s lone representative from the NCOP would have been unnecessary. If, however, he uses his power to appoint four staunch ANC people to the JSC, we will know that he was lying when he told the judges that the ANC respects the independence of the judiciary.
I am still hopeful that the President wuill not try to pack the JSC with disciplined cadres of the ANC in order to try and influence the appointment of anti-poor, pro-executive judges, but I holding my breath.BACK TO TOP