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This week the Judicial Service Commission will be interviewing a shortlist of four senior judges in order to advise the President on the selection of the next Chief Justice. 

Freedom Under Law is profoundly concerned that two current members of the JSC will reportedly be participating in these proceedings despite their suitability to fulfil their constitutional duty in this regard being a matter of serious doubt. These members are Mr Julius Malema MP and Adv Dali Mpofu SC.

Mr Malema was recently found to have breached Parliament’s Code of Ethical Conduct. The Joint Committee on Ethics and Members’ Interests found that during JSC interviews for the appointment of judges, Mr Malema had put an inappropriate question to a judge concerning a matter in which he had a personal interest.  It went on to hold that Mr Malema had used the JSC as a “platform for his personal interests”. It accordingly recommended that Parliament sanction Mr Malema by requiring him to apologise to both the judge concerned and the JSC for his conduct. Parliament is yet to deliberate on the matter while Mr Malema, it appears, remains unrepentant. 

Adv Mpofu was investigated by the Legal Practice Council in relation to his extraordinary conduct at the Zondo Commission last year when he rudely demanded that a colleague – and later her client – “shut up” and interrupted Justice Zondo when he attempted to control the proceedings. 

The LPC concluded that Adv Mpofu interrupted Justice Zondo on numerous occasions and “did not uphold the accepted decorum in court”. It found that his conduct was aggravated by his having been being “contemptuous” towards Justice Zondo, and having refused to accept a rebuke from him. And that it was wholly improper for him to demand that his colleague “shut up” during the hearing.  The LPC accordingly recommended that Adv Mpofu be charged with professional misconduct. These charges are pending. 

The JSC has long applied the principle that a candidate facing a misconduct charge should not be considered for appointment. Yet the JSC permits two members against whom misconduct proceedings are ongoing to participate in this week’s proceedings. 

We respectfully suggest that Mr Malema and Mr Mpofu should stand aside from service on the JSC as long as they are subject to these serious ethical charges. Unless and until they successfully challenge the findings, they are not fit to pass judgment on the ethical and professional qualities of others. 

Issued by Freedom Under Law