Judiciary staring down a barrel

The constitutionally guaranteed independence of South Africa's legal system and the political impartiality of the Judicial Service Commission (JSC) continue to be threatened as the legacy of the controversial legal dispute surrounding Western Cape Judge President John Hlophe continues to stoke a crisis in the JSC. In the latest incident, a third candidate to fill vacancies on the Constitutional Court bench has withdrawn. But the judicial-political fault line runs much further back - all the way to South Africa's corruption-riddled multibillion-rand arms deal.

The recent developments around the judiciary did not simply begin with a spat between Judge Hlohpe and his colleagues in the Constitutional Court. Its roots go back some way.

In fact, it represents a serious fault line running through the South African political-judicial sphere ever since the government's controversial and severely compromised multibillion-rand arms acquisition led to corruption charges being brought against President Jacob Zuma, among others.

The credibility and integrity of the JSC has been impaired severely by the more recent developments that began when Hlophe allegedly attempted to influence two Constitutional Court judges in matters regarding the corruption charges against President Zuma, which have since been withdrawn.

All the judges of the Constitutional Court collectively asked the JSC for a formal inquiry into Hlophe's conduct.

The JSC in the meantime had several new members, said to be aligned to Zuma and Hlophe, appointed to its ranks by Zuma. Following these appointments, the JSC eventually made a highly controversial and contested decision not to hold a formal inquiry into the dispute between Hlophe and the Constitutional Court judges despite finding that his actions had been "improper".

Members of the legal fraternity criticised the decision, as did opposition political parties. And Johann Kriegler - a respected retired judge of the Constitutional Court and chairperson of the organisation, Freedom Under Law - announced his decision to challenge the JSC ruling on Hlophe and urged the JSC to review it. When the JSC failed to reply to Kriegler's letter demanding that the JSC supply reasons for its decision, Kriegler announced he would take the matter to the High Court.

These developments around Hlophe and the JSC, in turn, impacted negatively on a process that was under way whereby the JSC has to fill several vacancies in the Constitutional Court, as well as that of a new Chief Justice by the president.

A group of Hlophe supporters within the legal fraternity - again believed to be politically aligned to Zuma - began agitating for Hlophe to be the next Chief Justice. However, the lingering controversies involving him have put paid to that for now.

President Zuma then unilaterally nominated Judge Sandile Ngcobo as his preferred candidate for the position. The very able and experienced serving Deputy Chief Justice Dikgang Moseneke - the favoured candidate of much of the legal fraternity and all opposition parties, and possibly the wider public's choice, too - was ruled out by Zuma.

The president gave no reason, but it is believed this was due to the fact that Moseneke had seriously fallen from favour with the ruling ANC months before, when he remarked at a private function that as a judge he served all the people of South Africa and not a political party. Neither has Moseneke ever been politically aligned to the ANC.

Zuma's nomination of Ngcobo immediately led to a howl of protest from opposition parties that said Zuma had not consulted them in the matter as is required by the Constitution. Afterwards, four opposition parties rejected President Zuma's explanatory claim that he had not yet made up his mind about who to appoint as Chief Justice and that he had merely nominated Ngcobo as a possible candidate.

Meanwhile, the hearings forming part of the process to appoint new judges to the Constitutional Court became mired in controversy. Former Judge Kriegler said publicly that the interviews were "impaired" because of the JSC's decision in the Hlophe dispute. He said he had been approached by five candidates who had wanted to withdraw, but had managed to persuade four of them to stay in the process.

Subsequently, three candidates withdrew from the hearings. Judge Robert Nugent withdrew after telling Kriegler he was not "prepared to submit his candidacy to the deliberations of people he does not trust". Judge Belinda van Heerden withdrew before the JSC's decision in the Hlophe matter. And this week, Judge Shehnaz Meer of the Western Cape High Court and Land Claims Court withdrew her candidacy without citing reasons. (For a full report, click here)