The 11 justices of the Constitutional Court of the Republic of South Africa are supposed to be independent. They cannot be members of Parliament, of the government, or of political parties.
They are required to be impartial and to uphold justice for all the people of South Africa, without fear, favour or prejudice. This was as a result of the pre-1994 multi-party negotiations that the judiciary should transform.
The objectives of the transformation of the legal system are to overhaul old-order legislation, apartheid policies and legal precedent, and to ensure equal justice for all.
Sections 174 to 178 of the Constitution deal with the appointment of judicial officers and the creation of the Judicial Service Commission (JSC), whose crucial and primary function is to screen candidates.
First, the JSC – comprising six MPs and four members from the Council of Provinces, among others – draws up a list of candidates and takes them through rigorous public interviews.
This begs the question: Are we not in danger – real and perceived – of putting politicians-cum-judges on the Bench under the false pretence of judicial transformation?
To be appointed solely on the basis of being able to weasel your way through the politically loaded JSC’s interviews through touching the right sentiments, in the long run works to the detriment of both the judiciary and the unsuspecting public.
It is troubling enough that the commission’s interviewing panel has party-political individuals – heads of court divisions should not be seen to be warming up to politicians as if they are indebted to them for their elevation to the Bench.
The legal profession does not decide which politicians go to Parliament. Why should politicians dressed up as parliamentarians decide who becomes a judge and holds which position within the judiciary?
We submit that politicians have no special qualities and are flawed like everyone else. Should not the legal profession be entrusted with the same responsibility, trust, and confidence to choose for itself who is fit, proper, and competent to be a judge?
You be the judge.
The Star