Opposition leader's JSC membership challenged

It would be ‘absurd’ to sug­gest the National Assembly can­not ini­ti­ate a pro­cess to review Economic Freedom Fighter (EFF) leader Julius Malema’s suit­ab­il­ity as a mem­ber of the Judicial Services Committee (JSC), the Helen Suz­man Found­a­tion is arguing in court papers. The found­a­tion 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. Business Day reports that 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 30 April decision declin­ing to ensure that Par­lia­ment con­siders the mat­ter to be declared invalid and set aside.

In oppos­ing the applic­a­tion, Did­iza argues the Con­sti­tu­tion and par­lia­ment­ary 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. Business Day reports that the lit­ig­a­tion brings into focus Par­lia­ment’s over­sight powers to review MPs’ mem­ber­ship of the JSC, the one link they have to judi­ciary appoint­ments, or lack thereof. 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. 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 down the matter to be heard on 11 Novem­ber.