Independence of judiciary raised at JSC hearing
Publish date: 18 April 2012
Issue Number: 3017
Diary: Legalbrief Today
The independence of the judiciary was one of the issues raised yesterday when the JSC interviewed candidates to fill two vacancies on the SCA.
A number of commissioners probed the candidates over the judiciary's independence from the executive and the legislature, notes a report in The Mercury. 'There is the sense in certain quarters that the constitutional structure is skewed, that the legislature and the executive branch have been under-powered and that the judicial branch has been allocated too much power,' said Advocate Izak Smuts SC, questioning Mthatha High Court Judge Xola Petse. In responding, Petse raised eyebrows over a comment that in his view, the judiciary was 'the weakest' of the three arms of state. It prompted Chief Justice Mogoeng Mogoeng to question him over what could be done to avoid a situation in which the country had a weak arm of state. Commissioner Jonas Sibonyani said the judiciary had the power to strike down legislation emerging from Parliament, as well as administrative action implemented by the Cabinet. It was cause for concern that certain quarters believed the judiciary 'behaves as if it is the bigger partner'. Deputy Minister of Home Affairs Fatima Chohan said: 'It's clear to me that while in one sense the judiciary is less endowed with mechanisms to implement its decisions, in a constitutional democracy, in effect the judiciary is the most powerful arm of the state...' However, Petse defended his comment, saying that judges did only what was mandated to them by the Constitution. 'In my view, the judiciary is the weakest of the three arms of (state). It doesn't have a purse; it doesn't command a force, and what it has done which has been construed as encroachment on the domain of the other organs of the state is what has in fact been authorised by the Constitution itself.'
Full report in The Mercury (subscription needed)
Four other judges were also grilled yesterday, according to a report in The Times. It says Free State Judge Shamin Ebrahim, Eastern Cape Judges Ronnie Pillay and Clive Plasket, and Gauteng Judge Brian Southwood joined Petse in a gruelling six-hour session of intense - at times uncomfortable - questioning. At the end of the session, commission spokesperson CP Fourie said in addition to interviewing the applicants for positions on the Bench, the commission would also 'interrogate' why suitable candidates were not applying for positions in other courts. During yesterday's session, two candidates, Petse and Plasket - both acting SCA judges - were asked whether the Eastern Cape could afford to lose individuals of their calibre. Plasket responded: 'I'm afraid it sounds like being punished for one's competence and I think it would send out a very bad message if the commission was to take the view that some people would not be elevated because they will leave a big hole where they come from.' Justice Minister Jeff Radebe asked him if he was familiar with the Department of Justice's discussion document on the transformation of the judicial system and whether he had any problem with what the department was seeking to do. 'Well, I've had a look at the terms of reference and I can't see anything objectionable in there at all,' Plasket replied. Full report in The Times
Petse and Plasket had the support of 'a lot' of the Appeal Court's judges, it emerged yesterday. A Business Day report notes that since SCA judges sit in panels when they hear and decide cases, the views of the permanent members of that court are an important factor for the JSC to consider when it decides whom to recommend for appointment. However, in the past, the JSC has appointed judges to the Appeal Court even when its president, Lex Mpati, had suggested a negative report-back from some of the permanent members of the court. Of the candidates interviewed yesterday it was only during Petse and Plasket's interviews that Mpati mentioned they had 'a lot' of support from Appeal Court judges. When asked what could be improved in the Appeal Court, another candidate, Judge Ronnie Pillay, said more attention needed to be paid to the Constitution. 'I'm not saying that members there don't pay attention. But I think, as a tool for improving the lives of the poor, we can do a bit more there'. The JSC has set up a special litigation commission to deal with the matter involving Western Cape Judge President, John Hlophe, according to a report on the IoL site. Full Business Day report Full report on the IoL site