The battle over the judiciary and political criticism intensified on Wednesday after the Helen Suzman Foundation filed court papers seeking to force Parliament to reconsider EFF leader Julius Malema’s membership of the Judicial Service Commission (JSC).
In a move likely to ignite fresh political tensions between the courts and the EFF, the foundation approached the Western Cape High Court arguing that Malema’s repeated public attacks on judges and his conduct during JSC interviews raised serious constitutional concerns.
The foundation is not asking the court to remove Malema directly. Instead, it wants the National Assembly compelled to decide whether he remains suitable to sit on the influential body responsible for recommending judges for appointment.
Another constitutional showdown
The application effectively places one of South Africa’s most combustible political figures at the centre of another constitutional showdown, this time over whether fierce criticism of the judiciary crosses the line into conduct unbecoming of a JSC commissioner.
“The independence, dignity and effectiveness of the courts are central to South Africa’s constitutional democracy,” the foundation said in court papers.
“Those entrusted with selecting judges must meet the standards required to protect that institution.”
The foundation also launched a broader constitutional attack on the Judicial Service Commission Act itself, arguing that the legislation is fundamentally flawed because it does not force commissioners to abide by a binding code of conduct or provide sanctions when members allegedly step out of line.
JSC ‘must adopt a code of conduct’
The organisation wants the court to declare parts of the law unconstitutional and suspend the declaration to give Parliament time to fix the defect. In the interim, it seeks an order compelling the JSC to adopt a code of conduct.
Former Western Cape High Court judge and MKP deputy president John Hlophe was previously blocked through court action from serving on the Judicial Service Commission after concerns were raised about the integrity and credibility of the judicial appointments body.
The Constitutional Court later ruled that Parliament’s designation of Hlophe to the JSC was unlawful and invalid. The latest court challenge against Julius Malema is likely to trigger comparisons, although the Helen Suzman Foundation is not directly seeking his removal, but rather a parliamentary assessment of his suitability.
Malema’s prison sentence
Adding political fuel to the matter, the foundation cited Malema’s five-year prison sentence linked to the 2018 firearm discharge incident at an EFF rally.
“Mr Malema thus sits on the body that appoints our judges, while at the same time maligns and undermines their credibility when they apply the law against him,” the papers read.
“The credibility of the judiciary is critical in a constitutional democracy.”
Foundation ‘shielding Ramaphosa’
Recently, the EFF responded with characteristic firepower, accusing the foundation of acting as constitutional bodyguards for President Cyril Ramaphosa.
In a blistering response to the foundation’s intention to take the matter to court, the party described the litigation as “politically motivated” and warned that the application sought to criminalise democratic criticism of judges.
“This application is a dangerous and dishonest attempt to redefine democratic criticism as constitutional misconduct,” the EFF said.
“The implication advanced by the Helen Suzman Foundation is that members of Parliament who hold strong views about the judiciary, particularly views critical of judges or judicial outcomes, should be excluded from constitutional oversight bodies.”
The red berets further suggested the timing of the litigation was linked to mounting pressure around the Phala Phala scandal involving Ramaphosa.
“Faced with deepening economic collapse, unemployment, worsening poverty and unresolved corruption scandals, Ramaphosa’s defenders seek to manufacture constitutional outrage against Julius Malema and the EFF in order to silence the most consistent voice of opposition in South Africa,” the party said.
The case now threatens to reopen one of South Africa’s deepest constitutional fault lines: whether politicians entrusted with overseeing judicial appointments can simultaneously wage political war against members of the bench without weakening public confidence in the courts.
- The battle over the judiciary and political criticism intensified on Wednesday after the Helen Suzman Foundation filed court papers seeking to force Parliament to reconsider EFF leader Julius Malema’s membership of the Judicial Service Commission (JSC).
- In a move likely to ignite fresh political tensions between the courts and the EFF, the foundation approached the Western Cape High Court arguing that Malema’s repeated public attacks on judges and his conduct during JSC interviews raised serious constitutional concerns.
- The foundation is not asking the court to remove Malema directly.
- Instead, it wants the National Assembly compelled to decide whether he remains suitable to sit on the influential body responsible for recommending judges for appointment.
- Another constitutional showdown The application effectively places one of South Africa’s most combustible political figures at the centre of another constitutional showdown, this time over whether fierce criticism of the judiciary crosses the line into conduct unbecoming of a JSC commissioner.
