April 2016 JSC Interviews wrap up

Julius Malema has suggested that the EFF take the property clause to the Constitutional Court, and ‘stretch’ it, to allow for expropriation of property without compensation.

The exact interpretation of the property clause aside, the very fact that he can suggest this is telling. Suddenly, his is not waving his copy of the Little Red Book around, but waving the constitution instead, and talking about the rule of law. We like to think this is, at least in part, due to his exposure to the JSC, and its deliberative process.

In this last round of interviews in April the process was mildly chaotic, with a day set aside for the interviews having to be sacrificed to the impeachment of President Zuma debate. Despite that, observers agreed that it was a particularly good set of interviews.

This feel was not just because they offered good entertainment, although the interview of Judge Allie had followers on Twitter offering the view that the JSC interviews were ‘lit’. It was also because the interviews really started to dig in around some of the questions about how the law allows leaders to be held to account, and what that accountability means.

The recent Nkandla judgement left the politicians feeling a little chastened, and perhaps that put them on the back foot – at least there were no questions around the separation of powers. The debate about the candidates’ record on leadership, for example, was thorough, and Judge N Kgomo (Limpopo DJP) fell short, only realizing towards the end of the interview that he had implied throughout that the current Judge President in his division does very little. He in addition managed to express surprise at the competence of women judges, saying “there have been very good judges…I have even forgotten they are women.” which he was roundly taken to task on.

We realize, it seems, how important judges are to us more and more. It is important, however, that we do not take their role too far. They, as a branch of government, cannot legislate or give effect to legislation. They are the referees, not the players. The Court cannot ‘stretch’ a right to find something in it that is not there, contrary to Mr Malema’s position.

If the politics of the day result in bad leadership that a majority vote back into power, the Court cannot save the electorate from itself. What the Court, and the JSC who appoints it, and the working judges and lawyers who practice the law every day, can do is hold steady the thin black line between law and those who seek to undermine it.