By Lehlohonolo Lehana.
The Western Cape High Court reserved judgement in an application by the Helen Suzman Foundation (HSF) to have Economic Freedom Fighters (EFF) leader Julius Malema removed from the Judicial Service Commission (JSC).
The matter was heard in the Western Cape High Court by a full bench including Judges Nobahle Mangcu-Lockwood, Diane Davis, and Mas-udah Pangarker.
Malema is accused of repeatedly attacking judges who rule against his party, raising concerns that his conduct could undermine judicial independence.
The HSF wants the high court to declare invalid and set aside National Assembly Speaker Thoko Didiza’s April 30 decision that declined to ensure the house considered Malema’s suitability to be designated to the JSC.
If the order is granted, the foundation wants the National Assembly to be directed to consider whether to replace Malema as a designee to the JSC within 20 court days and be directed to consider all relevant circumstances including the EFF leader’s conduct.
In addition, the HSF wants the high court to declare the JSC Act constitutionally invalid insofar as it does not oblige the commission to adopt a code of conduct for commissioners.
As just and equitable relief, the foundation asks the high court to suspended the declaration of invalidity for 24 months in order to allow parliament an opportunity to remedy the constitutional defect.
According to HSF, during the period of suspension, section 6A is deemed to be read-in to the JSC Act as 6A Code of conduct for commissioners. The commission must compile a code of conduct for commissioners within two months.
HSF senior counsel Advocate Geoff Budlender SC, argued Malema’s repeated public attacks on judges go beyond legitimate political criticism.
Budlender told a full bench of the High Court that attacking the integrity of the courts undermines public confidence and makes a person unsuitable to sit on the panel that selects judges.
The HSF is not asking the court to remove Malema directly. Instead, the application seeks to compel the National Assembly to fulfill its constitutional duty by reviewing whether Malema remains fit to serve as one of Parliament’s representatives on the JSC.
Malema’s legal team, led by advocate Mfesane Ka-Siboto opposed an application by the HSF seeking to compel Parliament to review and potentially remove Malema from the JSC.
Ka-Siboto contended that the HSF has not established a rational basis for the removal process and argued that the foundation is trying to silence an opposition leader, while questioning the context of his remarks regarding the judiciary.
He argued that Malema’s past remarks criticizing judges must be understood in their broader political context.
Judge Davis challenged Malema’s advocate regarding the defense of his remarks, stating that “no context in the world” justifies attacks on the judiciary.
Rather than defending the substance of the remarks on the merits, Ka-Siboto argued that the HSF had failed to establish a rational legal basis to compel Parliament into initiating a removal or review process. He maintained that while questions about Malema’s conduct could be examined through a properly established parliamentary mechanism, the court should not force such a process based on the foundation’s application.
Advocate Kameel Premhid argued that Didiza doesn’t have the powers to bring the matter of removal before the National Assembly (NA).
“And Speaker says, in the context of Parliament, I operate as a creature of statute. I don’t have these wide-sweeping powers that the HSF asserts I have. I, myself, am constrained by the rules that I operate in. If they feel it’s insufficient, the correct way to come to court is to attack the rules, “said Premhid.
Budlender said, Parliament’s Speaker should engage with the relevant processes to determine whether Malema is suitable to serve on the commission.