Yesterday's unprecedented application (see here) to the Judicial Services Commission (JSC) by the Minister of Justice, Jeff Radebe, ostensibly to allow him time "to make an assessment of the constitutional imperatives of the racial profile and the gender representivity of the judiciary", is of deep concern to the Democratic Alliance and we believe its implications for the judiciary, and its independence from the executive, are significant.

The application sought to postpone a series of public interviews by the JSC with four shortlisted candidates for three positions on the bench of the Supreme Court of Appeals.

The Minister is, by virtue of his office, a member of the JSC; however, he is not appointed to the body to impose the will of the executive onto it; merely to make sure that the Department of Justice - as the administrative body responsible for the courts and judiciary - is fairly represented. The JSC is an independent body and the Constitution quite clearly states that "no person or organ of state may interfere with the functioning of the courts."

The Minister's application, however, runs contrary to this principle; and while a majority of the JSC did support his request, the Democratic Alliance believes its purpose was political and its intent is to use transformation as a guise through which the ANC can directly influence the appointment of judges. This can only be to the detriment of the judiciary and its independence; for while the JSC's final recommendation is confirmed by the President, the process of selecting that candidate is designed to be free of executive interference and to ensure an impartial and unbiased bench.

Since its inception at the ANC's 1997 Mafikeng conference the ruling party has systematically set about using transformation as a smokescreen through which it can justify the deployment of cadres loyal to its political programme to key centres of power. In this sense, transformation and cadre deployment have worked hand-in-hand and run parallel to the principle of a separation of powers: by ensuring that ANC cadres are answerable first and foremost to the ruling party, any independent institution must account, first to the ANC, and second to South African people; and, in turn, the ANC NEC usurps the Constitution.

Against this background and the subversion of other independent institutions in the name transformation, the Democratic Alliance believes the Minister's intervention is a matter of grave concern that it will continue to monitor closely.

If the ANC executive is allowed to interfere directly in the process of shortlisting candidates for the bench and in the systems and structures of Judicial Services Commission, with the intent of subverting that process until candidates favourable to its particular political programme are found, the very purpose of an independent judiciary is undermined.

Statement issued by Democratic Alliance parliamentary leader, Athol Trollip MP, June 9 2009

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