Zuma removes JSC members

In a press statement last week, The Presidency announced that President Zuma had decided to replace three members of the Judicial Service Commission (JSC). Namely, Advocate Dumisa Ntsebeza SC, Advocate Ismael Semenya SC and Ms Andiswa Ndoni.

This move has been described by The Sunday Times as ‘a new assault on the judiciary’.  The Sunday Times report says that the ANC wants its ‘deployees’ on the JSC to push for a re-look at ‘the appointment criteria used’ by the constitutional body to appoint judges to the superior courts. But, they say, opposition MPs and civil society bodies have vowed to fight the ANC’s plans, saying they were an attempt to create ‘a subservient judiciary’.

In the discussion document, the ANC says: ‘It’s important that judges with a progressive philosophy and who advance judicial activism to give effect to social transformation be appointed to the Bench. The ANC, through its deployees in the JSC, must influence the review of appointment criteria used by the JSC and ensure intense scrutiny and evaluation of candidates for judicial office.’”

You can read the full Sunday Times report here. [Subscription needed.]

The EFF also released a statement from spokesperson Mbuyiseni Ndlozi on Friday in response to these actions which is summarised in an article on Business Day. In the article Ndlozi is quoted as saying; “The ANC and Zuma are therefore only trying to have yes men and women in the JSC so that the JSC can appoint judges who can rule in their favour…”

Stephen Grootes wrote an analysis for the Daily Maverick on this move where he says;

“Now Zuma appears to be at least attempting to take action. He has not said why he decided to remove Advocate Dumisa Ntsebeza, Advocate Ismael Semenya and attorney Andiswa Ndoni from the committee. Each was prominent in their own way; Ntsebeza as chairman of Advocates for Transformation (among many other hats that he wears, including of course as the former evidence leader for the Truth Commission), Semenya has had a long and admirable track record at the Bar and as chairman of the General Council of the Bar, and Ndoni was the chair of the Black Lawyers Association when she was appointed. As they each have their own constituencies, they certainly would not be at Zuma’s beck and call. If they are replaced with people who do not have track records of their own, that could be a sign that Zuma might control them in some fashion.”

Members of the Advisory Council of the Council for the Advancement for the South African Constitution (CASAC) met on Saturday 4 March 2017 in Cape Town for their bi-annual meeting, where they called the present situation in South Africa a ‘time of crisis’. In their statement the CASAC Advisory Council say that;

“The rule of law is strong but judicial appointments must be scrutinized as President Zuma misses an opportunity to transform judicial leadership. The strength of the rule of law and the independence of the judiciary are two vitally important assets for South Africa. In this regard, CASAC notes the recent decision of the President to (a) indicate his nomination for Deputy Chief Justice is Justice Raymond Zondo – and expresses its disappointment that an opportunity to appoint a woman into a leadership position in the judiciary has been missed (when only five of the 24 leadership positions in the High Court and Appeal courts are female); and (b) replace three well-respected members of the Judicial Service Commission that is constitutionally-responsible for judicial appointments. CASAC intends to continue to watch this space very carefully and work with other organisations, such as UCT’s Democratic Governance & Rights Unit and the Judges Matter campaign, so as to protect the integrity of the judicial appointment process.”

As we noted in an article last week there is significant pressure being placed on the courts as they substitute for effective deadlock breaking mechanisms in the political space. The increase in cases forces the courts to hand down more judgements challenging the state, which in turn drives more criticism of the judiciary.

[Update: 10.03.2017]

On Friday, 10 March, Deputy Minister of Justice and Constitutional Development, John Jeffery, responded to the claims by the EFF and the other press responses with an Op-Ed in the Daily Maverick. In his article he states;

“The Constitution does not provide for how long these members must or can serve. According to section 178(3) of the Constitution, members of the JSC serve until they are replaced by those who designated them.”

“What they didn’t say was that the three commissioners had already been serving on the JSC for eight years. Some commissioners have served on the JSC for 15 years (like George Bizos and Kgomotso Moroka), others have served for shorter periods (like four years in the case of Seth Nthai.)”

[Update: 26.03.2017]

The three new members that the President is considering to designate to the JSC are Advocate Thandi Norman SC, Mr Sifiso Msomi and Advocate Thabani Masuku.

Read more about this here:

[PAYWALL] Sunday Times: ANC pushes for its kind of judges

Daily Maverick: Analysis: Is Zuma/ANC starting a battle for the soul of SA judiciary?

Business Day: EFF’s Ndlozi slates Zuma for dropping advocates Ntsebeza and Semenya

Huffington Post South Africa: Justice Zondo: Another ‘Ultimate Guardian Of Our Constitution’

Original Press Statement from The Presidency: President Zuma thanks outgoing members of the Judicial Service Commission

Original Press Statement from The Presidency: President Zuma consults political parties on the appointment of the Deputy Chief Justice of the Republic

CASAC Advisory Council Statement 4 March 2017

Daily Maverick: Op-Ed: There’s no conspiracy behind Zuma’s decision to replace three members of the JSC

Original Press Statement from The Presidency: President Zuma is considering to designate new members of the Judicial Service Commission