Why the JSC is failing us Quarter 3 2021

By BOUWER VAN NIEKERK, Published in The Law/Opinion

"Quis custodiet ipsos custodes?" This question, often wrongly attributed to the philosopher, Plato in his seminal work, Republic, is a Latin phrase that is originally found in the Roman poet, Juvenal's poem, Satires. It is translated, "Who will guard the guards themselves", "Who watches the watchers", or (in this context, my favourite) "Who will watch the watchmen"?


First published in the second century AD, its relevance continues to echo through the centuries, especially in a political context of power, as it asks the question as to how power can be held to account. Because, as John Dalberg-Acton has reminded us since the 19th century, power tends to corrupt, and absolute power corrupts absolutely.

Luckily, the fathers of our constitutional democracy have included a great many checks and balances to ensure that power is not concentrated in an absolute sphere. The job of making laws lies with the legislature, i.e. parliament. The cabinet's job (i.e. the executive) is to run the country. This is led by the president and his ministers. And the courts are there to adjudicate the disputes that may arise when these arms of government, or concerned entities, have disputes that they need to have resolved (i.e. the judiciary).

Many forms of democratic governments have different ways of doing things. In some instances, like the United Kingdom, it is ruled by a unitary state governed within the framework of a parliamentary democracy under a constitutional monarchy. In South Africa, we adhere to a constitutional democracy, where all decisions are ultimately decided by the Constitutional Court. For some, this may seem undemocratic, as the judges of the Constitutional Court are not elected by the general population, or even the ruling party (as is the case with Supreme Court justices in the United States). The power placed on the chosen few shines a great and heavy spotlight on them, as (loosely quoting Spiderman) they are clothed with great power, but it comes with great responsibility.

So, who chooses these judges? Who nominates those who will act as the watchmen over our constitutional democracy? This is a serious function and requires serious people to oversee the process. It is so serious that a special body was created for this in s178 of the Constitution, namely the Judicial Service Commission (JSC). Its importance is reflected by its membership; the Chief Justice, the President of the Supreme Court of Appeal, a Judge President, a Cabinet member, practising advocates and attorneys, a teacher of law, members of the National Assembly and the National Council of Provinces and other persons designated by the President. In short, this is a very distinguished group of people, trusted to advise the national government on any matter relating to the judiciary or the administration of justice, including the appointment of judges – the Chief Justice, Deputy Chief Justice and the President and Deputy President of the Supreme Court of Appeal. They are the watchmen who ensure that the right watchmen are appointed to oversee the last bastion of our constitutional democracy.

In principle, one is comforted by yet another form of checks and balances to ensure that the separation of powers are kept tidily in place. But, unfortunately, principle and practice sometimes show ugly differences. In explaining this, I fall back on an age old saying, "justice delayed is justice denied". This is evident from the fact that it took the Judicial Service Commission (JSC) thirteen years to conclude that the Judge President of the Western Cape High Court, Hlope J, was guilty of, among others, gross misconduct in attempting to influence Constitutional Court justices in a case involving former president Jacob Zuma. In saying this, I express no opinion on the finding; rather, I am concerned about the inordinate amount of time that it has taken to come to this decision.

Alarmingly, when the JSC was asked to act against Hlope J by Freedom Under Law, and not to allow him to sit on the panel to appoint new judges, the JSC, through its spokesperson, Dali Mpofu SC, responded that there is nothing special about the Hlope case, and that the JSC does not feel any pressure to finalise it.

No pressure? One shudders when one hears such an utterance. The Judicial Service Commission is no ordinary body, and that it unashamedly informs the public that it took thirteen years to conclude that a senior member of the judiciary was guilty of gross misconduct, yet sees no urgency in finalising the matter, should fill one with trepidation.

It brings me to my second age old saying: "justice must not just be done; it must be seen to be done". And here, again, the JSC fails miserably. It is one thing to delay justice, but to conclude that an injustice has occurred and then inform the public that it is not pressurised to finalise the matter is not only abhorrent, but unjust, as such a statement reflects a complete lack of understanding of the constitutional duty that befalls the very institution that should guard the guardians it nominates for appointment.

The mystic Chinese philosopher Lao Tzu said the following:
Watch your thoughts, they become your words;
Watch your words, they become your actions;
Watch your actions, they become your habits;
Watch your habits, they become your character;
Watch your character, they become your destiny.

No pressure? Give me, and the public at large, a break. Do not insult our collective intelligence. Do not act as if you – the JSC – are doing us a favour. We have seen your thoughts, your words, and your actions. Consider changing it, before they become your habits, your character, and your destiny. Because a destiny of tardy indifference is not what the Constitution requires of you.

Van Niekerk is a Director at Smit Sewgoolam Inc.