Malema’s suitability for JSC post questioned
The constitution has no provision empowering the National Assembly speaker to initiate a process to recall EFF leader Julius Malema as a member of the Judicial Service Commission, despite him having verbally attacked judges for years, speaker Thoko Didiza argues in court papers.
Didiza has opposed a legal challenge by the Helen Suzman Foundation seeking a court order for the National Assembly to consider Malema‘s suitability as a member of the JSC, which interviews and recommends judges for appointment.
The foundation wants the National Assembly to take steps to remove Malema from the JSC as it argues he is guilty of misconduct in light of his repeated public attacks on and criticism of the judiciary.
This puts Malema‘s JSC membership, which he has held for 12 years, at risk for the first time.
The foundation challenges Didiza, arguing she took a decision on April 30 to decline to ensure that the National Assembly considers the suitability of Malema to be designated to the JSC and wants the decision declared invalid and set aside.
The foundation, which advocates for the protection of the rule of law, made the call for Malema‘s suitability to be considered after he publicly criticised magistrate Twanet Olivier, who presided over the criminal case where he was charged with unlawfully discharging a firearm.
Malema called her an “incompetent white judge”.
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In April, Malema was sentenced to five years in prison for unlawful possession of a firearm, two years for unlawful possession of ammunition and R20,000 or six months’ imprisonment for discharging a firearm in a built-up area.
Didiza, in an affidavit, argues the law does not make provision for her to initiate a process for the National Assembly to decide whether Malema remains suitable for appointment to the JSC.
She contends that the constitution, the rules of the National Assembly and the joint rules do not vest in her the power or duty to initiate the recall or replacement of a National Assembly designee to the JSC on demand by an outside body.
The constitution prescribes no grounds upon which a designee to the JSC may or must be removed or replaced and further prescribes no process for doing so.
There can be no duty upon the speaker to initiate such a partisan and/or disciplinary process without the constitution and the rules of the National Assembly or the joint rules conferring such a duty and a corresponding power to exercise to fulfil the duty.
Didiza maintains the process to deal with the foundation’s dissatisfaction requires changes to the National Assembly rules, the joint rules, legislation or the constitution and should have sought appropriate relief in this regard.
The foundation executive director, Naseema Fakir, argues the contrary, that the constitution empowers the National Assembly to replace its designees on the JSC.
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Fakir argues a person who is designated does not have the right to retain that position for as long as they remain a member of the National Assembly.
“The power to recall and replace is coupled with a duty: where circumstances arise from their subsequent conduct that calls into question the suitability of a designee to fulfil their duties on the JSC, the National Assembly is constitutionally obliged to consider exercising the recall power, and in appropriate circumstances to exercise it,” Fakir argues.
The National Assembly, in law, is required to designate members who are “fit and proper” to the JSC, Fakir contends, adding that it is obliged to replace members on the JSC if they objectively cease to be fit and proper.
The foundation takes the concept of a “fit and proper” person from a judgment of the high court in the case which challenged MK Party MP John Hlophe’s appointment to the JSC after he was impeached as a judge.
The full bench in that case overturned Hlophe’s designation to the JSC, having found designating a person who is not fit and proper to serve on the JSC undermines the constitutional imperative set out in section 165(4) of the constitution and compromises the integrity and credibility of the JSC.
Malema argues the facts in his case are materially different from the Hlophe matter.
“There is no obligation under section 178(1) of the constitution for the National Assembly to only designate members who are fit and proper to serve on the JSC,” he argues.
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Malema contends the relief the foundation seeks is extensive and extraordinary, and that it violates the separation of powers doctrine.
The court cannot take over the functions of the legislature, Malema argues.
Malema maintains his comments about judges and magistrates were made as political speech in the context of robust political debate.
He argues the case should be dismissed because it is moot while he appeals the imprisonment sentence.
His remarks about judges are protected speech, Malema says.
They were made against the backdrop of existing court judgments.
