Zondo warns of political dominance in judicial appointments

Former chief justice Raymond Zondo says the level of judicial representation in the Judicial Service Commission is woefully low, and if the country is to safeguard the independence and credibility of its judiciary, this imbalance must be corrected.

Zondo made the remarks while delivering the annual Helen Suzman Lecture in Johannesburg on Thursday, where he spoke on whether there is a need to re-examine South Africa’s judicial appointment model.

He said the topic presented an opportunity to scrutinise the judicial appointment process, to determine whether it is strong enough to withstand attempts by criminal syndicates to capture the judiciary, or whether it has weaknesses that can be exploited by such elements.

Zondo said the composition of the JSC includes all key stakeholders — the judiciary, the executive, the legal profession, academia and parliament.

However, the level of representation among these groups is uneven.

He said when the JSC sat to consider appointments to the Supreme Court of Appeal, the Constitutional Court, or the positions of chief justice and deputy chief justice, there are only three judges representing the judiciary; the chief justice, the president of the SCA, and a judge president designated by other judges president.

“This means that only three out of 23 members represent the judiciary — a body primarily concerned with the appointment of judges.”

He said by contrast, the legislature was represented by 10 members; six from the National Assembly and four from the National Council of Provinces. He said the president may also designate four additional members, who can be politicians.

Zondo said this created a serious imbalance.

If at any stage we were to have a president captured by any interest group ― including criminal syndicates or influential families ― it would be possible for such a president, working with the majority party, to create a JSC composition with 12 members aligned to that majority.

He said six members from the National Assembly and four from the NCOP voting together made up 10 votes. Only two more votes are needed to form a majority of 12, enough to determine crucial appointments such as those of Constitutional Court judges.

He said such a structure allowed for the possibility of political dominance within the JSC. A president who commands a parliamentary majority could, by appointing four like-minded individuals, effectively control the outcome of JSC decisions.

“If at any stage we were to have a president captured by any interest group ― including criminal syndicates or influential families ― it would be possible for such a president, working with the majority party, to create a JSC composition with 12 members aligned to that majority,” he said.

He said given those risks, there was an urgent need to review section 178 of the constitution, which governs the composition of the JSC.

“We must increase judicial representation within the JSC to reduce the risk of political or criminal capture of the judiciary. If we fail to address this now, we may one day live to regret it,” Zondo said.

However, Zondo said the selection process during initial stages allow for the public to comment on the candidates shortlisted for interviews for various positions.

“The opportunity for the public to nominate, comment on and object to candidates is of vital importance to the legitimacy and credibility of those who are ultimately appointed as judges. This feature of our model must remain,” Zondo said.

TimesLIVE