The Judicial Service Commission (JSC) was established in terms of section 178 of the South African Constitution and is regulated by the Judicial Service Commission Act 9 of 1994. The JSC plays a central advisory role in the selection of judges, as well as in the receipt and adjudication of complaints about judges.
The JSC is designed to play a crucial role in South Africa’s constitutional democracy, through ensuring the quality and independence of its judiciary.
Judicial Service Commission
The Helen Suzman Foundation’s litigation in respect of the Judicial Service Commission (JSC) sought transparency in the process by which judges are selected. The catalyst for the litigation was a 2012 decision by the JSC to recommend certain candidates to be appointed as judges in the Western Cape Division of the High Court. The effect of the decision was to overlook certain well qualified candidates. This caused the HSF to launch a review of the 2012 decision.
However, the JSC was determined to keep secret its deliberations about the decision, effectively blocking the HSF’s review. What ensued was a six-year long court battle, in which the HSF sought, successfully in the end, to compel the JSC to release its private deliberations. The HSF’s successful litigation in this matter has laid the foundations for a transparent judicial selection process going forward.
Magistrate’s Commission
The HSF’s joined proceedings against the Magistrate’s Commission as a ‘friend of the court’ (amicus curiae), when Mr Richard Lawrence approached the High Court to challenge the lawfulness of his being excluded from consideration as a permanent magistrate on the sole ground of his race. Mr Lawrence was successful before the High Court and again before the Supreme Court of Appeal, after the Commission appealed against the High Court’s decision.
The Helen Suzman Foundation’s (HSF) participated litigation related to the Independent Police Investigative Directorate (IPID), in order to ensure independence from undue political interference. A direct threat to this independence came first in 2015, when the Minister of Police unilaterally suspended the then IPID Executive Director, Robert McBride. Another threat came in 2018, when the Minister of Police sought to unduly interfere with the renewal of McBride’s term as IPID’s executive Director. In both instances, the HSF participated in litigation to ensure and defend IPID’s independence.
The Helen Suzman Foundation’s (HSF) interest in the Hawks were called into life to replace the disbanded Directorate of Special Operations (colloquially referred to as “the Scorpions”). The Scorpions were a priority crime fighting unit, situated within the South African National Prosecuting Authority, that was renowned for its independence and effectiveness in dealing with priority crimes. The HSF’s concern was that the newly formed Hawks would lack the independence and effectiveness of its predecessor.
After significant success in two separate cases dealing with the Hawks’ independence, the HSF successfully pursued two further legal battles centered around the unlawful suspension and subsequent appointment of the Hawks’ National Head.
In May 2015, the National Director of Public Prosecutions (NDPP) at the time, Mr Mxolisi Nxasana, vacated his position in exchange for a multimillion Rand settlement agreement. The NDPP, as head of the NPA, holds the power to determine prosecutorial policy in South Africa.
The litigation, in which the Helen Suzman Foundation participated as a ‘friend of the court (amicus curiae), that followed the settlement agreement sought two purposes. First, to challenge the settlement agreement on the grounds that it was a subversion of the lawful procedures governing an NDPP’s vacation of office. Second, to challenge the constitutionality of the statutory provisions that made the NDPP’s job security dependent on the discretion of the President, whether by way of unilateral suspension or unilateral renewal of tenure.
The Helen Suzman Foundation (HSF) became involved in litigation surrounding the Commission when Jacob Zuma refused to comply with a summons instructing him to appear as a witness before the Commission. When the Commission itself sought to obtain an order from the Constitutional Court compelling Mr Zuma to comply with the summons, the HSF joined the court case as a ‘friend of the court’ (amicus curiae).
Despite securing an order from the Constitutional Court compelling Mr Zuma to appear before the Commission, Mr Zuma refused to do so. Approaching the Constitutional Court for the second time, the Commission sought an order of contempt of court and the HSF, once again, joined as an amicus curiae. The Constitutional Court held that Mr Zuma was in contempt of court and due to the severe and unprecedented nature of his contempt, sentenced him to 15 months imprisonment.
This finding set in motion two further unprecedented court battles. The first was an application by Mr Zuma to the Constitutional Court to rescind its judgment which sentenced him to imprisonment on the basis that he was not afforded a fair trial. The second was an application to the Pietermaritzburg High Court – which had geographical jurisdiction over Mr Zuma’s residence and place of intended imprisonment – to interdict the Constitutional Court’s order of imprisonment, pending the outcome of the rescission application.
The HSF was cited as a respondent in both applications and opposed them. Following a swift victory in respect of the interdict application, the parties to the rescission application were requested by the Constitutional Court to make submissions on whether Mr Zuma’s claim that he was not afforded a fair trial had any basis in South Africa’s international law obligations. Ultimately, the Commission and the HSF successfully opposed the High Court Interdict and the rescission application, resulting in Mr Zuma being kept in prison.
In this matter, the Helen Suzman Foundation sought urgent relief interdicting the implementation of the South African Broadcasting Commission’s (SABC) policy and practice not to cover violent and other protests, as well as relief preventing the SABC from adopting or implementing any censorship policy which would be contrary to the mandate of the public broadcaster.
The SABC’s case collapsed, and an interim interdict was granted by the High Court, effectively ending the SABC’s efforts to censor news coverage of violent and other protests.
Following a short stint in prison, due to his conviction for contempt of court by the Constitutional Court, former South African President, Jacob Zuma, was placed on medical parole by the National Commissioner of Correctional Services, Arthur Fraser. The HSF took the position that the National Commissioner unlawfully overruled the recommendation of an independently constituted Medical Parole Advisory Board. Accordingly, the HSF challenged Commissioner Fraser’s decision in the High Court.
Al-Bashir Arrest
In 2009 and 2010, President of Sudan, Omar Al Bashir became the subject two warrants of arrest issued by the ICC. He was charged with crimes against humanity, war crimes and genocide. In 2015, Al Bashir attended an African Union Summit in South Africa. Instead of complying with its legal obligation to arrest him - which was confirmed in urgent High Court litigation at the time - the South African government allowed Al Bashir safe passage in and out of the country.
The South African government later appealed against the High Court judgment to the Supreme Court of Appeal, where the HSF joined proceedings as a ‘friend of the court’ (amicus curiae). Ultimately, the SCA dismissed the South African government’s appeal, reaffirming that its failure to arrest Al Bashir is unlawful.
Manuel Chang Extradition
Manuel Chang is a former Finance Minister of Mozambique and a former Mozambican member of Parliament. During his time in office, he is alleged to have been involved in fraud relating to loans secured from foreign financiers to various Mozambican companies. Mr Chang faces charges of fraud and corruption in both the United States of America (USA) and Mozambique.
While en route to Dubai in December 2018, Mr Chang was arrested in South Africa in terms of an extradition treaty between South Africa and the USA. A legal dispute ensued, centered around the question of whether South Africa should extradite Chang to the USA or to Mozambique. The South African Minister of Justice and Correctional Services at the time chose to extradite Mr Chang to Mozambique, without considering whether Mr Chang would enjoy immunity against prosecution in Mozambique. The HSF joined a collective of Mozambican civil society organizations in High Court litigation which successfully set aside this decision as unlawful.
However, in August 2021, a new Minister also made a decision to extradite Mr Chang to Mozambique. The HSF joined the same Mozambican civil society collective to opposed the South African government’s political decision, as a result of a continued lack of clarity regarding Mr Chang’s immunity and the likelihood of a prosecution in Mozambique. This time around, the High Court ordered that Mr Chang be extradited to face prosecution in the USA and not be sent back to Mozambique.
The South African Government’s response to the Covid-19 pandemic was carried out in terms of the Disaster Management Act (DMA). Once a ‘disaster’ is declared in terms of the DMA, the executive branch of government takes over all aspects of its management. In effect, therefore, the DMA seals off managing the Covid-19 pandemic from ordinary deliberative democratic law-making processes.
This shift away from Parliamentary involvement in managing the Covid-19 pandemic precipitated the HSF’s approach to the Gauteng High Court to compel the government to chart a different course.
On 14 December 2017, the HSF filed an application to review and set aside a series of unlawful, improper and/or corrupt exercises of public power.
