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In terms of section 178 (1)(j) of the Constitution of the Republic of South Africa the President, as head of the national executive, may designate four persons to the Judicial Service Commission (JSC) after consulting the leaders of all the parties in the National Assembly.

Yesterday, the Democratic Alliance (DA) made its submission to President Jacob Zuma with regard to his intention to designate the following four candidates to the JSC:

Adv. Ismail Semenya SC
Adv. Dumisa Ntsebeza SC
Ms Andiswa Ndoni
Adv. Vas Soni CS

The DA supports the proposed designation of both Adv. Ismail Semenya SC and Adv. Dumisa Ntsebeza SC.

We believe that both these candidates possess the particular characteristics, including impartiality and a deep- seated commitment to the values of the Constitution that will be required of them in order to properly discharge their responsibilities as members of the JSC.

However, the DA has serious reservations over the President's proposed designation of Adv. Vas Soni CS and Ms Andiswa Ndoni to the JSC.

Firstly, Adv. Soni has practised as an advocate at both the Durban and Johannesburg bars. He acted for some considerable period in the early 2000s as the evidence leader in the Jali Commission, and much of the legal work he does appears to be acting for members of the national or provincial executives.

Of the recently reported cases in which he has appeared, he has, for example, acted for the Minister or Director-General of Justice on seven occasions, for the Minister of Labour on four occasions, for the Premier or MECs in KwaZulu-Natal on four occasions, for various statutory boards or parastatals on fouroccasions, for the Ministers of Health and of Home Affairs on three occasions each and for the Minister of Education on two occasions (see table below)

In short, he appears not to have had much of a practice outside of the state.

The DA's concern is that Adv. Soni is too executive-minded as a result of the briefs that he receives. This might perhaps account for the judgment he delivered as an acting judge in a case before the Johannesburg High Court on 26 May 2005, where he found it appropriate to place a gagging order on the Mail & Guardian newspaper.

This judgment effectively prevented the Mail & Guardian from publishing an account of how Imvume Management had improperly diverted R11 million worth of public money to the ANC, as a campaign contribution - an account which subsequently transpired to be accurate, to the extent that the ruling party had returned the disputed money in question.

Adv. Soni found that journalists "should not publish from a tainted source" and ruled that the M & G's story was not of overwhelming public interest. The overwhelming response to the issue over the next two years, an admission by PetroSA that it had erred (the public entity from which the money was sourced), and the ANC's admission that it had returned the money are testament to the weakness of Adv. Soni's judgment.

Secondly, with regard to Ms Andiswa Ndoni, Section 174(3) of the Constitution states that one of the functions of the Commission is to advise the President before he or she appoints the Chief Justice, the Deputy Chief Justice, and the President and Deputy President of the Supreme Court of Appeals.

Such positions are self-evidently crucial to the stature and credibility of the Courts and to the integrity of the justice system more generally. Therefore, every member of the JSC ought to strive to recommend only the most meritorious persons for such positions and to do so in a manner that is impartial and does not elevate personal bias above objective consideration.

Ms Ndoni's reported comments in the Sunday Times on 12 July 2009, with regard to her nomination - that it "means now we have to stop being a voice from outside the process, but implement the things we have been advocating for - a clear transformation stance" - suggest that she is not entirely impartial; but rather that, as a member of the JSC, she will advocate a political agenda with the consequence that excellence might well become a secondary consideration to race.

That suspicion is perhaps enhanced by an interrogation of her views - both in her personal capacity and as the President of the Black Lawyers' Association - with regard to Hon. Mr Justice John Hlophe who is one of the people in contention for the position of Chief Justice.

Newspaper interviews and articles s have revealed that in her opinion, Justice Hlophe is innocent - the victim of racism and his outspoken position on the issue. It is not for the DA to say whether Justice Hlophe is innocent or guilty, only that there remain a series of unanswered questions concerning his conduct, some of which involve no less prominent an institution than the Constitutional Court. Quite clearly, Ms Ndoni has a specific understanding of the context in which this situation is unfolding, to which racism is intricately tied.

We do not believe, on the available evidence, Ms Ndoni is able to dispense impartial advice to the President, with regard to the potential nomination of Justice Hlophe specifically, and the necessity that all those appointments outlined above be made impartially and with due consideration to individual merits of each and every designated candidate, as opposed to their race or any other partisan consideration.

The DA therefore urges President Jacob Zuma to give serious consideration to his proposed designation of Ms Andiswa Ndoni and Adv. Vas Soni SC as we believe that they do not meet the requirements of a President's nominee to serve as a member of the Judicial Service Commission.