A millennium or so ago, sometime between the first and second centuries, the Roman poet Juvenal asked a question that resonates now in troubled SA.

“Quis custodiet Ipsos custodes?” or “Who will guard the guards themselves?” remains key, especially for a country which, on the one hand, celebrates its constitution and, on the other, finds so many of its guardrails broken and essentially useless.

According to an Afrobarometer survey released last week, most South Africans share the view that the constitutional instruments designed to empower citizens and curb the abuse of power are unfit for purpose. So much so that two-thirds of those surveyed would, apparently, junk the constitution and elections for parliament if “a non-elected government could provide jobs, improved services and security”. Little wonder then that the same survey records “the lowest levels in history” (or since the survey was first conducted in 2006) of trust in institutions such as the presidency, parliament, the public protector and the electoral commission of SA.

A usual rejoinder and counterpoint offered by commentators and analysts to the gloom and doom evinced by the locust-ridden landscape of our atrophied state at the nadir of its decay has been to point to the key institution ostensibly outside its capture: the judiciary.

Yet the same survey suggests ordinary citizens have a more acute grasp of reality than so-called experts and pundits. It revealed that only 43% of respondents trusted the courts of law either “somewhat” or “a lot”. The majority clearly did not have enough information to offer a view.

In 1993, the constitutional framers decided, in a last-gasp compromise in which I was involved at Gauteng’s Kempton Park, to remove the appointment of judges of the Constitutional Court from the exclusive remit of the president and cabinet and create a nominating mechanism, the Judicial Service Commission (JSC), to bolster the independence and quality of aspiring justices.

The results since have been a downward spiral in which the veneer of independence and objective assessment has provided a cover for the blatant politicisation (by massively increasing the number of politicians appointed directly and indirectly to the JSC) and erratic and arbitrary adjudication by the very body entrusted to be the ultimate guard of the guardians themselves.

In the silliest remarks on recent happenings in and around the JSC the clear winner is the former admired public protector, Thuli Madonsela. Last week, she suggested, “the JSC people are self-correcting and doing things as best they can”. She offered this anodyne comment after the JSC decided, eventually, to recommend to parliament that the notorious and wayward judge president of the Western Cape, John Hlophe, be impeached by parliament. Having conducted his court in the most bizarre and reckless manner, his likely undoing will be for attempting to influence two Constitutional Court judges in 2008 — 13 years ago.

The response to the long-delayed decision of the JSC, which seems utterly unmindful of the legal maxim “justice delayed is justice denied”, was hardly in the Madonsela mode of approval for the body’s “growth mindset [the JSC] has grown from that bad experience”, whatever this jumbled formula means.

Former constitutional justice Johann Kriegler has, for 10 years or more, labelled the JSC “a concern”. And that an NGO, the Council for the Advancement of the South African Constitution (Casac), forced the JSC to rerun its circus of April interviews for two vacancies in the ConCourt confirms Kriegler’s view.

Another legal luminary, who cloaks his opinions under the nom de guerre of “Sergeant at the Bar”, was even more scathing about the JSC interview and adjudication process. Writing for News24, he noted, “the disgraceful conduct” of the JSC during the interview process. He pointed to the overt political presence on the body, saying some of its members (such as Dali Mpofu SC) represent the legal profession but also “hold or have held senior office in one of the political parties represented at the JSC”. In fact, with voluble EFF leader Julius Malema, whose opinions at the JSC are far more frequent than any other MP’s, and Mpofu, the small party now has an outsize presence and influence on the body.

Since the DA and its predecessor, the Democratic Party, were front and centre of the establishment of the JSC, it is useful to glean the views of its former leader, Helen Zille. She too, in her previous capacity as premier of the Western Cape, served on the JSC when the body determined appointments to its bench.

Writing for Politicsweb this week, Zille lamented how so many state institutions had “become extensions of the dominant factions of the ruling party, protecting the powerful from the people, not the other way around”.

On the JSC and Hlophe, she noted that his real descent into the legal twilight zone did not commence 13 years ago (with his attempt to improperly influence two ConCourt judges in the Zuma trial), but more than 20 years ago. This related to secret payments he received from Oasis, an asset management company. His claim that he received the verbal permission of the then-minister of justice, Dullah Omar, was “convenient” (as Omar was dead at the time) and, as Zille puts it, “a massive and easily verifiable lie”. The reason being that Hlophe’s board membership of the Oasis fund in question happened after Omar ceased being minister of justice.

The reason, Zille avers, correctly in my view, the JSC never acted against Hlophe in the first instance (Oasis) and then foot-dragged for 13 years over the saga of his attempt to suborn the ConCourt judges was the overt politicisation of the body.

She wrote: “The JSC should have [acted against Hlophe] 20 years ago, when the first major, verified complaint against him surfaced … But as a body with an inbuilt ANC-cadre majority, the JSC predictably let Hlophe off the hook, and enabled him to do immeasurable damage to the Western Cape bench over three long decades.”

Zille is right and wrong about the influence of the “ANC-cadre majority on the JSC”, as she terms it.

This is because the politicisation of the JSC has not excluded the voice and views of other opposition parties, including Zille’s DA and the IFP, for example.

The “disgraceful conduct” of the JSC in its recent interview process, which correctly attracted the ire of “Sergeant at the Bar” and the legal triumph of Casac in forcing a rerun of the interviews, was an all-party affair.

Reading the April 18 minutes of the commission which determined the names of the five nominees to be sent to the president for him to fill two vacancies in the ConCourt is a depressing affair.

The entire proceedings were dominated by our now absent and vaccine-denying outgoing chief justice, Mogoeng Mogoeng. He announced at its commencement: “I am going to give you a list of people that I think need to be recommended. Five names and I’ll explain why we should exclude the others.”

And that, more or less, was that. When it came to the most surprising exclusion, justice David Unterhalter, the only South African ever appointed to the appellate body of the World Trade Organisation (WTO), among other legal accomplishments, Mogoeng did not deny his legal pre-eminence. He simply explained that “we must discourage this type of behaviour”, a reference to Unterhalter having served only three years on the bench. (I need to aver my friendship with Unterhalter here, but his legal prowess is universally acknowledged).

Yet later on in proceedings, when pushback on this arbitrary rule announced by Mogoeng was offered by the judge president of Gauteng, Dunstan Mlambo, it was Malema who offered a way out by suggesting that, going forward, “each application will be judged on a case-by-case basis”. And so the JSC agreed, which provides an interesting framework for when, in October, the same body reconsiders the same applicants for appointment.

But what of the “ANC-cadre majority on the JSC” against which Zille warned? When ANC MP AJ Nyambi was first out of the starting blocks at the JSC to approve Mogoeng’s list of nominees and endorse his exclusions, it fell to other members to comment and advise.

Adv Jenny Cane SC, for example, dissented vigorously against the exclusion of Unterhalter and another nominee, and expressed concern about the judicial temperament of a name favoured by Mogoeng.

But when the representative of Zille’s party, the DA, adv Glynnis Breytenbach MP, was offered the floor, she simply stated: “ I am covered by the suggestion of commissioner Nyambi.”

Going along to get along is a nice idea sometimes, but it ill serves the official opposition in advancing the cause of “a capable state made up of strong, independent institutions that … uphold the constitution and protect people from the abuse of power”, as Zille wrote recently.

Leon, a former leader of the opposition, now chairs Resolve Communications.

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