The Helen Suzman Foundation has filed an urgent application in the Western Cape High Court compelling the National Assembly to assess whether EFF leader Julius Malema is fit to serve on the Judicial Service Commission.
The legal action targets Parliament’s oversight duties and highlights concerns at the intersection of criminal law, political rhetoric, and judicial independence. The foundation is also seeking a declaration that the JSC Act is unconstitutional for failing to provide a commission of inquiry.
Helen Suzman Foundation attorney Jason Whyte explained that the organisation has been pushing for some time for the Judicial Service Commission to implement a code of conduct, allowing it to self-police its commissioners. “When the commissioners that are appointed to the JSC conduct their official duties, what type of questions they can ask the judicial candidates, and including what they can do outside of the JSC,” Whyte said, noting that JSC members ultimately choose the country’s next judges.
According to Whyte, those calls for a code went unheeded, forcing the foundation to approach the courts for two reasons: to compel the National Assembly to consider Malema’s suitability for ongoing JSC membership, and to have the JSC Act declared unconstitutional.
Whyte attributed the lack of response to “complacency,” not hostility. He described the JSC Act as a “very bare bones piece of legislation” and stressed that the foundation wants Parliament to sit and consider amendments, not the court to impose a system.
Addressing the constitutional argument, Whyte said legislation can be unconstitutional either because its provisions offend the constitution or because it does not go far enough to uphold principles of accountability and judicial independence. The foundation has requested a “reading in measure” to impose a basic code of conduct, ensuring commissioners face oversight and sanction for misconduct both inside and outside JSC proceedings.
Crucially, Whyte clarified that the foundation is not asking Parliament to directly remove Malema. Instead, under Section 178 of the constitution, the National Assembly appoints six JSC members—three from the majority party and three from minorities—and has a “positive obligation to continuously review the performance of all six.” When designees are not fit and proper, Parliament must recall and potentially replace them.
“It’s really about forcing the National Assembly to make those decisions,” Whyte said.