It’s politics as usual at the JSC

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NEWS ANALYSIS 

It is a relief to report that shouting and slander seem a thing of the past in the Judicial Service Commission (JSC) interviews for appointments but this week served as a reminder that candidates must traverse the same minefield of parochial politics.

Judge Elias Matojane did so with great knowingness at times asking commissioners not to lead him down that path.

In December Matojane ruled that former spy master Arthur Fraser’s decision to grant Jacob Zuma medical parole was unlawful and ordered that the former president return to prison to serve his 15-month sentence for contempt of court.

Economic Freedom Fighters (EFF) leader Julius Malema did not once say Zuma’s name as he tried, as is his wont, to question a judge on a ruling that did not suit his party’s agenda. It was particularly egregious in this instance as an appeal is pending before the Supreme Court of Appeal, where Matojane is a candidate to fill one of five vacancies.

The question was cast as an inquiry as to why the prison system is called correctional services. Matojane said it implied an emphasis on rehabilitation. Malema then asked how this applied in the case of an 80-year-old man — a reference to Zuma’s age.

Matojane asked that he understand a judge’s task was to adjudicate on the points placed before him by the parties to a case. 

“Much as you have a wide discretion, you cannot go beyond what is before you. You cannot go on a frolic of your own,” he said, but Malema persisted, saying it was his understanding that they had to consider the wider interests of the country and it was not clear how this was served by jailing an old man.

“Mr Malema, you want to get me into trouble by asking a political question … I know where you are going,” the judge objected.

This exchange echoed one between Matojane and Malema before the JSC in April last year. Malema needled him on finding the EFF had defamed former finance minister Trevor Manuel in a tweet terming the selection process of a new tax commissioner nepotistic and corrupt. Then too, Matojane called him to order, saying: “I have said what I had to say [in my judgment]. I am constrained.”

On Tuesday, advocate Kameshni Pillay expressed reservations about Matojane’s dissenting judgment in Democratic Alliance vs Minister of Cooperative Governance, where he held that  section 27(2) of the Disaster Management Act was unconstitutional because it saw an excessive delegation of legislative power by parliament to the executive.

Pillay said the government had to respond to a pandemic of unknown proportions and even the constitutional court recognised the need for the minister to have those powers in a disaster.

The principles he espoused in his ruling, she argued, seemed more applicable under ideal circumstances than in such a calamity. 

Matojane asked: “Can I come in here? The point is, yes, the minister should have those powers but she must account to parliament after. We can have an earthquake today, maybe in the next week or two let her come to parliament and have that issue debated and relevant legislation passed.”

Justice minister Ronald Lamola intervened to support Pillay and said ministers had accounted to parliament on lockdown restrictions because they were called to brief portfolio committees.

“Was legislation passed?” Matojane asked, adding that he did not recall the legislature adopting laws banning jogging or buying cooked chicken.Lamola countered: “The act is not as wide as I hear you to be saying, that it is an unchecked exercise of power.”