President accused of not walking the walk on the judiciary

New appointments to the body that interviews candidates for the bench made this week by President Jacob Zuma have left experts wondering how seriously to take recent presidential assurances that he respects judicial independence.

Zuma’s speech to a conference of judges was widely praised for the reassurances he gave that the separation between the judiciary and executive would be observed.

However, this week saw a number of appointments that have raised new questions about whether he meant what he said.

The appointment of advocates Dumisa Ntsebeza SC, Ishmael Semenya SC, Vas Soni SC and Andiswa Ndoni to replace advocates George Bizos SC, Kgomotso Moroka SC, Seth Nthai SC and veteran trade unionist John Ernestzen also come after the dramatic postponement of Judicial Service Commission (JSC) interviews early this month.

Commenting on the new members of the JSC , the body that interviews candidates for the bench and recommends appointments, constitutional expert Pierre de Vos says that Zuma seems to have “talked the talk” about respect for judicial independence when he addressed the gathered judges.

But the appointments made it “far from clear” whether he is “walking the walk” on the issue.

De Vos says: “The signal sent by these appointments is that when the ANC (African National Congress) and the government it leads talk about judicial transformation, they might mean something completely different from what progressive lawyers and politicians mean when they use this phrase.”

“I hope I am wrong,” he said, “but these … appointments do not bode well for the real and deep transformation of the judiciary, by which I mean the appointment not only of more black and women judges, but also of more judges who have internalised the values of the constitution and would act in a scrupulously honest and ethical manner.”

Other observers have also expressed concern about the appointments, saying it appeared the ANC has “made a clean sweep” of the commission.

Bizos and Moroka have served on the commission since its inception, while Ernstzen has also served for many years. Critics of Zuma’s decision to replace them spoke of the “collective experience” which the commission would now lose all at once.

De Vos criticises their replacements on several grounds.

He says that despite his reputation, Ntsebeza was fired by Western Cape Judge President John Hlophe after he had made a series of appearances on behalf of the judge president in his dispute with the judges of the Constitutional Court. Hlophe later told the commission he had “lost confidence” in Ntsebeza, and that he had been fired.

However, a second member of Hlophe’s legal team requested that the commission fix a date for a hearing that would be suitable for Ntsebeza since, as far as he knew, Ntsebeza was still involved.

Whether or not Ntsebeza is still part of the Hlophe team, his earlier involvement will mean he is obliged to recuse himself whenever the commission discusses the judge president.

Ndoni will also be expected to recuse herself from any discussion about the Hlophe affair. Since she took over as head of the Black Lawyers Association she has said that one cannot divorce “the attempt to impeach” Hlophe from the remarks he made about racism in the judiciary.

She also said that if the JSC were to impeach Hlophe, it would set back transformation “by 10 years”. In her view, Hlophe is “a victim who would rather wish racism away than talk about it”.

De Vos questions how far Soni has internalised the constitutional values of openness and transparency, pointing out that, while an acting judge, Soni had issued a gagging order against the Mail & Guardian in a judgment that De Vos says was “definitely pro-executive” rather than pro- human rights.

Semenya, the third new appointment, is also controversial. After Semenya complained that a certain advocate he had proposed for senior counsel had not been given silk, Noseweek published a story that Semenya and his protégée refused silk were in fact business colleagues, owning a city centre building in which 70 advocates are housed.

De Vos says Ntsebeza and Ndoni have a reputation as “racial nationalists”, pushing for transformation of the bench based purely on race.

If this is so, expect the commission to move “sharply to the right”, he says, with the appointment of “more black but conservative, antihuman rights, lawyers to the bench.”

Earlier this week, before the four new appointments were named, there was another major change in commission membership when a Democratic Alliance (DA) representative from the National Council of Provinces was replaced by an ANC member.

At that stage, De Vos wrote that the row over the DA’s replacement would turn out to have been misplaced “if … Zuma does not replace the four members on the JSC that serve at the pleasure of the President (which can be replaced at any time), or if he replaces them with well respected lawyers”.

“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 will not try to pack the JSC with disciplined cadres of the ANC in order to try and influence the appointment of antipoor, pro-executive judges, but I (am not) holding my breath.”

In the meantime, there is still no clarity about whether the new Minister of Justice, Jeff Radebe, is intending to put up additional candidates for the next round of hearings by the commission, starting next weekend.

With acknowledgements to Carmel Rickard and The Weekender.