Malema fights to keep JSC post as court challenge looms

The constitution has no provision empowering the National Assembly (NA) speaker to initiate a process to recall EFF leader Julius Malema as a member of the Judicial Service Commission (JSC). This 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 (HSF) seeking a court order for the NA to consider Malema’s suitability as a member of the JSC, which interviews and recommends judges for appointment If found not suitable, the foundation wants the NA 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 which “transcend legitimate bounds, and undermine the independence and effectiveness of the judicial arm of government”.

The legal showdown 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 NA 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”. The foundation’s executive director, Naseema Fakir, argues the contrary, that the constitution empowers the NA to replace its designees on the JSC. 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 NA.

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“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 NA, 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 words “fit and proper” do not reflect in the constitution section that deals with the JSC, but the foundation takes it 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.

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