Parliament ‘obligated’ to remove Malema from JSC if not fit and proper, court told - TimesLIVE

It would be “absurd” to suggest the National Assembly cannot initiate a process to review EFF leader Julius Malema’s suitability as a member of the Judicial Service Commission (JSC), the Helen Suzman Foundation is arguing in court papers.

The foundation, which advocates for the protection of the rule of law, wants parliament to consider whether Malema, who has verbally attacked judges for years after losses in court, is “fit and proper” to be a member of the JSC, which interviews and recommends judges for appointment.

Malema recently publicly criticised magistrate Twanet Olivier, who presided over the criminal case in which he was convicted of unlawfully discharging a firearm, calling her an “incompetent white judge”.

The foundation has taken speaker Thoko Didiza to the Western Cape High Court, seeking a court order compelling the National Assembly to consider whether Malema, who has been a JSC member for 12 years and has three more left to serve, is suitable.

The foundation wants Didiza’s decision on April 30 declining to ensure that parliament considers the matter to be declared invalid and set aside.

In opposing the application, Didiza argues the constitution and parliament rules have no provision empowering her to initiate a process for Malema’s possible recall from the JSC.

Didiza contends that given the apparent gap in the constitution and the rules regarding the removal of MPs from the JSC, the foundation should have approached the court on the basis that the rules were constitutionally deficient.

In a rebuttal, the foundation’s executive director, Naseema Fakir, argues the National Assembly is not powerless.

“I submit that it would be absurd to suggest that the speaker and the NA would be entitled to ignore their duties under the constitution simply because their internal arrangements and procedures did not cater for the specific type of decision in question,” Fakir argues in the recently filed replying affidavit.

The litigation brings into focus parliament’s oversight powers to review MPs’ JSC membership, the one link they have to judiciary appointments, or lack thereof.

National Assembly speaker Thoko Didiza. (Brenton Geach) The Helen Suzman Foundation said the National Assembly would be delinquent in failing to take a decision on the matter as the constitution requires organs of state to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness.

The organisation’s case is that Malema’s conduct throughout his years as a JSC member has been contrary to his responsibility of upholding the integrity of the judiciary.

Fakir said that in the challenge to MK Party MP John Hlophe’s appointment to the JSC after he was impeached as a judge the court held that parliament must ensure that its designees are fit and proper to serve on the JSC.

“It would be absurd to suggest that the National Assembly is immunised from the review of the performance of its designees irrespective of how they comport themselves, both in proceedings before the JSC and in their public lives,” she said.

“For exactly the same reasons as those expressed in Hlophe II, the National Assembly is required to continuously review its designees and to recall them when they fail to support the objectives set out in section 165(4) of the constitution.”

Fakir argues the judgment in the Hlophe matter created a precedent that processes for designation to the JSC do not require a specific provision in the rules, only whether the procedure adopted is consistent with the constitution and rules.

The court must decide whether Didiza, upon being called to do so by a private organisation, not a political party, has the power to initiate a parliamentary process that questions an MP’s suitability to be a member of the JSC. Didiza argues this is not the case.

In her answering affidavit, she suggests an appropriate remedy for the foundation would be to engage a political party, but Fakir argues the foundation is not limited to lobbying political parties to act on the issue, saying this would place a decision of “considerable public importance issue” at the whims of political organisations.

“Thus, even though the introduction of a motion in terms of the rules might be a means by which the issue could be placed before the National Assembly, it is not an obligatory route,” she said.

“The obligation to consider the recall of a designee to the JSC arises independently of any complaint from the public or one of the political parties. It is an ongoing obligation of the National Assembly, and must be exercised as soon as circumstances arise that would call into question the suitability of the designee in question.”

Malema, in opposing the application, argues the remarks he has made about judges, dating back as far as 2019, are protected speech.

The court has set November 11 to hear the case.