Analysts have raised legitimate concerns about the conduct of certain Judicial Service Commission (JSC) members when interviewing candidates for the Constitutional Court.
Some on the JSC were too robust and off the wall in their questioning. The tone at times lacked decorum.
Julius Malema and chief justice Mogoeng Mogoeng played Laurel and Hardy, joined by commissioners Narend Singh and Mvuzo Notyesi, spewing nonsense against judge Dhaya Pillay suggesting she is a political hack. Malema's brand thrives on creating outrage, which carried over into the questioning of judge Fayeeza Kathree-Setiloane.
Judge Mandisa Maya invoked the three stooges show by asking one of the nominees whether he was captured. The proceedings were not edifying. The chief justice failed the test of leadership in not taking control of the proceedings to engender civility, decorum and frame the questions in a way many would have preferred. Similarly, the other commissioners failed the test of leadership by not providing a countervailing push-back.
The Council for the Advancement of the South African Constitution (Casac) has mounted a legal challenge to halt the recommendations of the JSC from being implemented. Casac's challenge in the main is fundamentally misconceived.
Bad manners and the lack of civility, grace and "intelligent" probing are not the equivalent of illegality. Courts in SA tend to readily transform political disputes into legal disputes to be resolved by the judiciary. This trajectory will steer the courts into an iceberg.
The courts in most countries would rule they lack discoverable judicial standards for judging lack of civility, bluster and buffoonery. There was no malfeasance or misfeasance. Were the optics before the JSC horrible? Absolutely. In the absence of illegality, the remedy must come through the political process. Try to persuade the president to reject the nominees. Perhaps make a case to the political actors to reconstitute the JSC.
Alas, there is more to Casac's challenge. They have thrown a lot of mud and simplistic platitudes - including public interest, due process, rationality, fairness and more - hoping that with a scattershot attack, something will stick. Casac's premise is that the JSC should not be politicised and that there is a neat distinction between the political and legal functions of politicians on the JSC.
It also suggests there are neutral legal criteria that should be dispositive in evaluating judicial candidates. This is Alice in Wonderland playing on legal Astroturf. These perspectives align with the liberal agenda that has long pushed a misguided vision of the role of judges under a constitutional state.
Casac's challenge is faux outrage of liberal elites, under the guise of progressivism claiming they have the best perspective on the constitution and what is relevant for consideration of judicial appointments. They want to impose liberal metrics on the process. The not-so-hidden assumption is that their nominees are owed appointment or promotion to higher judicial office.
Legal interpretation, particularly on constitu-tional matters, invites an interplay between political and social policy judgments. Many liberals espouse the jaundiced view that judging is a purely technical exercise. Their perspective reflects an ideological, monochrome vision of the role of judges.
If we deconstruct Casac's challenge, the JSC should limit its concerns to whether a candidate is "fit and proper" in relation to technical skills. This is a conservative ideology resoundingly wrong in its understanding of the constitution and what the judicial enterprise entails.
Technical skills must be suffused with other predicates, including transformation, gender representivity, temperament, the legal and political philosophies of the nominee and the interpretive rules a judge uses in giving the constitution meaning. Central to the inquiry is whether the nominee adheres to a rights-based approach, embracing international law standards of interpretation, which protects vulnerable groups in society.
In his founding affidavit, Lawson Naidoo for Casac objects to the questioning about Israel which was posed to judge David Unterhalter. When discussing Israel, the issue of Zionism is front and centre. Naidoo is the designated wasp from the liberal hornets' nest. He carries the baton for the liberal-inspired distortion that seeks to finesse the JSC to a particular mould and exclude certain inquiries he claims to be political and irrelevant.
Zionism represents a view of racial exclusivity that privileges one group and oppresses another. Unterhalter served at the highest level on a body that shamelessly advocates for Zionism. As the objectors to Unterhalter's nomination noted, technical skills devoid of a vision of human rights have no place in a progressive, constitutionally mandated adjudicatory paradigm like ours.
It is alarming that Naidoo would be so brazen to assert that a question to a nominee associated with a Zionist organisation is off-limits. Zionism justifies racial superiority, apartheid and land disposses-sion - quintessential questions of human rights.
If Casac and their ilk prevail, they will succeed in prioritising the values of a malign faction and minimising the importance of holistic and universal rights-based values in the adjudication process
Members of the JSC must consider deeper questions of culture, history, transformation, judicial philosophy, and temperament. The JSC must be concerned about whether the candidate's judicial philosophy transcends the perspectives of their race, class, or privileges and furthers the values which undergird the constitution.
Is Casac Solomon, who knows in an a priori manner which political question is fair? The questions posed often depend on the moment. If Casac was paying attention, Israeli human rights abuses and Zionism are of the moment.
No political question can be taken off the table in an a priori manner. The famed jurist Hans Kelsen noted that judges do not simply declare the law. Instead, every judicial decision involves a choice among competing values. Judges exercise political power not just in declaring legislation invalid.
They exercise political power in every case whether imposing a criminal sentence, granting a divorce, the seizure of property, awarding of custody, or granting damages. Almost every case pertains to a societal value. A judge decides which one is favoured over another. The essence of politics consists in allocating values for society.
Casac, like right-wing ideologues, seek to truncate the questioning of the politics of a judicial candidate. If Casac and their ilk prevail, they will succeed in prioritising the values of a malign faction and minimising the importance of holistic and universal rights-based values in the adjudication process.
The JSC did not cover itself in glory. Do we have rascal politicians on the JSC? Without doubt. Whether every stupid and misinformed question from a commissioner - including whether a Jewish candidate would be able to work on their sabbath - was animated by bad faith is a matter of subjective interpretation that a court would not be able to resolve.
Casac's papers are littered with shibboleths and gauzy platitudes like nursery rhymes. The overwhelming issues presented by Casac would in most democracies be considered non-legal questions. Litigants that raise such claims are more likely to be put on a donkey and ridden out of court. Alas, our courts at times have a penchant to proclaim the donkey king.
• Motala is professor of law, Howard Law School, US
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