By Mondli Makhanya
It was retired Deputy Chief Justice Dikgang Moseneke who once said that the drafters of the Constitution had had Nelson Mandela in mind when they conferred an inordinate amount of power on the president of the republic.
Moseneke, then still in office, said during a lecture at the University of South Africa in 2014: The anecdotal account is that, at the time of the formulation of the final Constitution, whenever there was a dispute about who should appoint a public functionary, the negotiating parties were happy to leave the power in the incumbent president, Nelson Mandela. He, after all, will do the right thing.
The jurist enumerated the powers of the president: “The president appoints the ministers of the Cabinet and deputy ministers, leaders of government business to the National Assembly.
He appoints all ambassadors. The president appoints the chief justice and the deputy chief justice after consultation with the Judicial Service Commission [JSC] and appoints the president of the Supreme Court of Appeal.
He is also empowered to appoint the judge president of the Land Claims Court and chairperson of the Competition Tribunal, and the judge president of the Competition Appeal Court.
“He appoints all judges on advice from the JSC and acting judges in consultation with the chief justice. The president further appoints … the National Director of Public Prosecutions, the Public Protector, the Auditor-General, members of the SA Human Rights Commission, the Commission for Gender Equality and the Electoral Commission of SA … [The president] appoints commissioners of the Public Service Commission, the head of the defence force and the military command of the defence force, the head of the police, the head of the intelligence service and members of the Financial and Fiscal Commission.”
He continued to list many other responsibilities that left no doubt about the immense power the president enjoyed.
The drafters of the Constitution did not envisage that these powers would one day be inherited by someone who personified the concept of slime. Jacob Zuma would use those powers to appoint grimy reprobates who were prepared to repurpose the state to further the interests of his criminal enterprise.
In their wisdom, the drafters of the Constitution also wrote in a structure called the JSC, a body that would oversee the appointment of judges and the ethical functioning of the judiciary.
It was hoped that the lawyers, academics, politicians and judges who would sit on this august body would always have the republic’s best interests at heart when executing their powers. The powers vested in them by the Constitution were sacred.
For a while, the JSC was true to its mission. The fact that we have a strong and trustworthy judiciary is largely due to the rigorous work of successive JSC panels. But, alas, like many things in this land, this body has degenerated.
This week, things hit rock bottom. What was supposed to be the culmination of a historic process in which the public was for the first time involved in the selection of the nation’s chief justice turned into what some have described as a “sh*tshow”.
Led by EFF leader Julius Malema and his party comrade Dali Mpofu (in his capacity as a representative of the advocates’ profession), the roguish wing of the JSC were not there to help choose the next chief justice.
They were there to mete out revenge on those candidates who they had crossed swords with in the recent past. Malema may as well have been at the scene of a store-trashing, doing what he does best, which is being uncouth. Mpofu threw off his legal robes and put on red overalls.
They were enthusiastically aided by others who saw their role as doing the bidding of Zuma, whose run-ins with the law must for some reason always be blamed on the law and those who administer it. The rest of the JSC hardly objected to the trashing of decorum and partisan diversion of the agenda.
It does not help that, save for a few, the composition of the JSC is bereft of intellectual and moral heft.
This is what happens when you entrust the task of choosing judges to the likes of National Assembly Speaker Nosiviwe Mapisa-Nqakula – a real ethical dwarf – and MP Sylvia Lucas, who famously blew tens of thousands of rands of public funds on KFC and other heart-threatening fast foods.
Complicit in the mess was the impuissant chairperson Judge Xola Petse, who behaved like a referee at a blood-sport amphitheatre.
What we will remember from this sh*tshow was the savaging of the nation’s leading jurists, who we all expected to be grilled and be made to sweat, but not to be humiliated.
We will remember the utterly sexist and patronising kid-glove treatment of the only woman candidate, an individual of high standing and gravitas.
If she does get the position, which she thoroughly deserves, the stain of having been pushed through by the thuggery that we witnessed this week will be hard to remove.
The JSC has been desecrated. South Africa needs to push back and reclaim the dignity and purpose of the institution. There is nothing wrong with the powers it enjoys; it is the abuse of those powers that must be fought.
—Mondli Makhanya is Editor-In-Chief of City Press