A fool, by any other name, shall but remain a nincompoop
For as long as we allow charlatans to use JSC as clearing house & vessel for ascension of their political favourites and old-time besties, the legitimacy of its process and output will remain in peril
The political alchemy of the Judicial Service Commission (JSC) happened gradually, and then suddenly.
On Monday, just before the JSC announced that it would recommend that President Cyril Ramaphosa appoint Justice Mandisa Maya to fill the vacant position of Chief Justice of the Constitutional Court, I had publicly expressed my exasperation with the way certain members of the JSC had conducted themselves.
I opined – on my Twitter timeline – about how I was tempted to join the fray of ineluctable, justifiable criticism and pen an essay about the political alchemy of a once-sacred institution: the JSC. But since I felt too angry to not be acerbic towards BEE and transformation askaris in our midst at the time, I demurred from the idea of making public my musings, lest they were too biting and filled with rage.
Alas, my restraint didn't last for 24 hours before being unshackled by a vicious letter issued by a motley crew of learned friends in defence of "their own" after his feelings were hurt by being called a nincompoop!
And lest the word nincompoop took a political turn a la the narrative that followed the Marikana tragedy, I could no longer resist taking concomitant action against transformation askaris trying to guilt the public into fear and submission by resorting to what analysts commonly refer to as political astroturfing.
Let me explain.
At the outset, let's get some facts out of the way.
JSC process a springboard
The JSC is constitutionally mandated to conduct interviews of candidates duly nominated by and to make recommendations for such appointments to the President of the Republic. The decision to appoint the country's Chief Justice is a constitutional prerogative vested solely in the President after they have dispensed with certain prescribed consultations.
There's no way to sugar-coat this, but JSC processes have in recent years become farcical since certain transformative structures were used as springboards to parachute otherwise ill-qualified, narcissistic individuals to sit as members of this once-revered creature of our Constitution. This portends peril for the future of this nation.
In a statement issued on Wednesday by the so-called group of "concerned advocates", issue was taken with News24's editor-in-chief, Adriaan Basson's article in which he excoriated their "own brother" and senior colleague, Dali Mpofu, for his appalling conduct at the hearings.
I hold no brief for Basson, whom I believe is very capable to respond to criticism levelled at him. But, as the African proverb goes, "the truth is like a lion; it needs no defending".
And much as it is tempting to engage said "concerned advocates" in a scholarly debate of the etymology of Anglican words, like nincompoop, the exercise could easily descend into ad hominem attacks and invite further puerile haranguing and threats of lawfare around public discourse that ought to be a solemn, unifying and edifying affair: the appointment of a Chief Justice.
In short, such engagement would serve no purpose other than as a futile attempt at checking protagonists' egos – something impossible to do with well-resourced narcissists trained in the art of litigation.
Nevertheless, it begs repeating that the conduct of certain members of the JSC, particularly Mpofu's, are not only a harbinger of South Africa's veritable descent in civility and decorum, but also poses an existential threat to our democracy.
Words matter. Words uttered by and the conduct of prominent representatives of society, especially those entrusted with the exercise of public power on behalf of citizens through a creature of our Constitution - the JSC - matter even more.
That the "concerned advocates" wouldn't deign to publicly rebuke "their own" for egregious un-collegial proclivities at the JSC, speaks volumes about their commitment to engendering ethical conduct within the realms of the criminal justice system.
It was, therefore, refreshing to read a statement issued by the Black Lawyers Association (BLA), in which it uncharacteristically and publicly reprimanded "its own".
In a rather caustic but measured statement against their petulant "own" errant members of the JSC, the BLA stated that it was "…of the view that the process of the interviews was mired in disrespect for certain candidates and absolute lack of decorum. The denigrating and humiliation of certain candidates who have availed themselves of the opportunity to serve their country, did not leave the JSC processes unquestionable. It also raised pertinent questions about the behaviour of certain commissioners [ostensibly referring to Mpofu et al] who seem to have forgotten that they ought to [reflect] the best that South Africa and South Africans can be."
In peril
For the avoidance of doubt, Mpofu and his acolytes seem to have not only forgotten that they ought to reflect the best that South Africa and South Africans, through the JSC, can be, and instead wilfully and unashamedly put on public display the basest instincts in humanity.
Of course, in a deliberative constitutional order such as ours, although public humiliation of those we detest may not be legally impermissible, it is downright impertinent, not least by a senior member of the legal profession. Such conduct should be eschewed by all and not tacitly countenanced by anyone remotely concerned about the well-being of our democratic experiment.
For as long as we allow certain elements to use the JSC as a clearing house and vessel for the ascension of their political favourites and old-time besties, the legitimacy of the process and its output will remain in peril.
Predictably, the BLA "believes that the outcome of the interview process was excellent as it yielded a recommendation that many South Africans justifiably support. We thus join many South Africans in congratulating President Maya for being the ultimate candidate preferred for appointment by the JSC."
Again, I do not wish to be drawn in unhelpful debates as to the suitability or otherwise of any of the eminent jurists who availed themselves for consideration for appointment as Chief Justice, save to say that such ill-timed statements do not do Maya any favours.
I shudder to think the public murmurs that would arise were Mpofu to appear before her, and/or if she were to write the main judgment in matters in which Mpofu appeared before her. That poor attempt at levity (or was it?) could put her in a pickle.
Though a fool, by any other name, shall but remain a nincompoop, it isn't reassuring knowing that there's one born every minute. In the end analysis, it matters not who would ultimately be appointed Chief Justice since, notwithstanding their gender, they would remain an equal to the rest of their peers on the apex bench.
That said, it is the President's prerogative as to who he appoints, and that jurist may not have spent endless nights swotting with a people's advocate (sic).
I remain.
- Tebogo Khaas is founder and chair of Public Interest SA, an independent, public benefit civic movement immersed in public interest issues. Public Interest SA commits itself to help realise the promise of our Constitution through sheer moral force of civic mobilisation, education, empowerment, collaboration and persuasion.