MCEBO DLAMINI: Ramaphosa must take JSC recommendations seriously

We have been glued to our screens these past couple of days watching interviews for the top post at the Constitutional Court. This year it seemed to me that more and more people were interested in the succession debate of who should become the new chief justice of the apex court.

This is not quite surprising considering the recent events that have been unfolding in the country. As our democracy matures, it is becoming apparent that to be a justice is not some ceremonial position that deals only deals with abstractions but rather is to have the power to directly affect the lives of the people. Justices play a relatively huge role in determining law and policy. They interpret the law and for these reasons the selection of who should become a Justice should, without doubt, be a scrupulous one.

There is no doubt that the candidates who were submitted by President Cyril Ramaphosa to succeed Mogoeng Mogoeng are all experienced and in one way or the other have the capacity to lead the team of justices at Braamfontein. But in making the selection of who leads, where are we supposed to begin? Do we begin the conversation on personalities or a thorough discussion on what kind of Chief Justice do we want? In the first instance do we have a rubric of the kind of leader we need or has it become some sort of culture to squabble over names instead of substance?

I say this because even in the election of our leaders debates around policy are often secondary or used to catapult certain candidates into power. Factionalism and senseless battles over names are always at the fore.
We can no longer accept that the South African democracy is young anymore. It is almost 30 years since we supposedly broke free from the shackles of apartheid. But in all these years there has not been adequate redress of the brutalities of the past.

Black people who were oppressed and are a majority but still find themselves in the bottom of the social and economic hierarchy. This means that justice has not been done. The Justices as the custodians of justice without doubt have a duty to ensure that justice is served. Why then has this not happened? If we all agree and have indeed seen the power that the courts yield why has justice not been served? The logical explanation is that the leadership has not been clear and unapologetic on the question of transformation.

Of course, transformation is at the centre. We have seen, in many instances, that we will not be able to move forward in the country if the past is not addressed. We have to fight against forgetting the unforgettable and this fight begins with properly addressing the land question as Vuyani Pambo intimates in his article Law and Politics. It cannot be that all arms of government engage in doublespeak when it comes to this question, the judiciary claiming that the legislature has power and the legislature saying the Constitution is the barrier. We need a leadership that has a clear position.

I am aware that the scope of the responsibilities of the Chief Justice is broader than this but I believe that this is the basis from which we must begin. After all the creation of this still divided nation is through the dispossession and the conquering of the land.

Of course, the selection processes by the JSC must be rigorous and intense. We will remember the drama that characterised the previous interviews in 2011. This year was no different, so much so that there were even calls made for the removal of Julius Malema and Dali Mpofu from the being part of the commission. This shows how the intricate the link is between politics and the law. The perpetual calls for law to be separated from politics is an attempt by a liberal school of thought to suppress certain voices.

No institution can exist and even operate outside of the political zeitgeist of that particular time. What perhaps should be the discussion is how do we engender a healthy co-existence between the law and politics. Where the law is not arbitrarily used to support certain schools of thought or the interests of the few. How can law and politics or the politics of the law be used to benefit the majority of the people?

I hope the JSC is not lured into this unattractive culture of advocating for certain names because there is a possibility of personal benefit. In the deliberations what matters is whether the candidate will advance the interests of the majority. The president too must take seriously these recommendations because it is only through the JSC that the people are represented in selection of the judiciary.