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SUBMISSION: JUDICIAL SERVICE COMMISSION INTERVIEWS OCTOBER 2023

1. Freedom Under Law (FUL) is a not-for-profit organisation,^[1] promoting democracy, the advancement of the rule of law and the principle of legality in southern Africa. These values arefoundational to any functional constitutional democracy.

2. This submission responds to the JSC’s call for comments on the suitability of candidates shortlisted to be interviewed at the JSC’s October 2023 sitting. In this submission, in the spirit of constructive comment and to enhance the quality of the current system, we focus on aspects of the JSC’s process, and introduce FUL’s recent research on the appointments process. This submission builds on our November 2022 submission commenting on the JSC’s criteria and guidelines for judicial appointment.   

3. In late 2022, FUL produced a report reviewing the performance of the JSC between 2009 and 2022 (“the FUL report”).^[2] In this submission, we aim to introduce that report to the JSC, and to highlight aspects which we feel are of relevance to the forthcoming interviews. We do not deal with the merits or demerits of individual candidates. Rather, we hope that our input will be able to assist the JSC in ensuring that the interview process is fair, effective, and allows the best possible candidates to be identified and recommended for appointment.

4. We begin by providing a brief overview of key findings and recommendations from the FUL report. While the report deals with both appointments and conduct, this submission will naturally focus on appointments only. We then comment on aspects of the appointment process where, in our view, the findings and recommendations of the FUL report may assist the JSC in further reforms to the appointments process. This will include a brief analysis of key issues which arose during the April 2023 interviews.

5. It must be noted at the outset that the report was finalised in late 2022, prior to the JSC releasing the summary and explanation of the criteria and guidelines used by the JSC when considering candidates for judicial appointment (“JSC criteria” or “JSC guidelines”), and prior to the April 2023 interviews, when these criteria were first applied. Nevertheless, we are of the view that the report provides valuable insights into the practice of the JSC over the ten-year period that the report considers. 

The FUL report

6. The report expresses concerns that the JSC’s public interviews have often descended into a spectacle that is not appropriate for the important task of selecting judicial officers. We note that during the period under review, no fewer than 26 nominated candidates withdrew either before or during interviews, and suggest that at least some of these withdrawals must have been triggered by candidates being reluctant to interviews that have been unpredictable, and at times downright hostile.^[3] These withdrawals, as well the dearth of candidates for vacancies on the Constitutional Court (as discussed below), suggests that the appointment process is not functioning as it should, and that it is not trusted by many judges.

7. The report identifies some of the major criticisms of the JSC’s interview process, namely:

• A lack of clear criteria and guidelines against which candidates are assessed. Included in this discussion is an acknowledgement of the need for the JSC to take into account the specific requirements of the court where the vacancy arises^[4];

• Inconsistency in the focus, range, and duration of interviews;^[5]

• The application of section 174(2) of the Constitution and the approach to the transformation of the judiciary;^[6] and

• The inappropriate influence of party-political considerations, including instances which can be characterised as the outright harassment of candidates who appear to be deemed “politically unsuitable” by some commissioners.^[7]

8. The report makes several proposals to address these concerns:

• Changes to the structure and infrastructure of the JSC, which includes ensuring strong support from a (well-capacitated) secretariat, and changes to the composition of the JSC to ensure that more senior judges are represented;^[8]

• Changes to the processes and procedures followed during interviews. These include the adoption of clearer guidelines for appointment, and the report particularly emphasises the need for the JSC to adopt and follow a constitutionally compliant approach to the interpretation of sections 174(1) and (2) of the Constitution. The report also emphasises the need to consult with heads of court to establish any specialist needs in respect of the vacancies to be filled. It suggests the preparation of a report detailing the race and gender composition of the judiciary overall and of the specific courts for which vacancies are to be filled, to ensure that section 174(2) is not applied in a vacuum.
• The report also recommends greater standardisation in the interview process, which needs to be consistent and even-handed. It is important for the chair to ensure equitable treatment between candidates.
• The report also suggests that the JSC can promote accountability by providing reasons for recommending candidates, with reference inter alia to the adopted guidelines. Commissioners should also record reasons for their decisions on the suitability of candidates, which would then form part of the record should a decision be challenged.^[9]

• Finally, the report suggests various measures direct at the role of commissioners themselves. It suggests the introduction of orientation and training for new commissioners and recommends that the JSC adopt a code of conduct for commissioners, setting out the standard for appropriate conduct during interviews.^[10]

9. It must be acknowledged that not all these reforms are capable of being implemented at once. Nonetheless, they provide a helpful framework for considering how the JSC should go about its task in the forthcoming interviews.

10. In the reminder of the submission, we consider how these recommendations relate to specific issues relevant to the October 2023 interviews. 

Criteria and guidelines, and the conduct of interviews

11. Having previously encouraged the JSC to develop more detailed criteria,^[11] we again commend the JSC for having done so. We have commented on the criteria in detail in our earlier, submission and will not repeat those comments here.

12. The April interviews showed the application of the criteria and guidelines in subtle but significant ways. We observed many incisive, rigorous, and relevant lines of questioning, while the haranguing and ambushing of candidates for which the JSC has been criticised in the past were mercifully absent. Whilst there was robust engagement with aspects of candidates’ track record, this seemed to be us to be appropriate and justified in the circumstances. The importance of permanent judicial appointment means that robust but fair scrutiny of a candidate is not only justified, but essential.

13. It must also be said that other lines of questioning were noted which seemed repetitive, irrelevant, or unnecessary.
14. We observed several instances were commissioners expressly articulated their understanding of the approach the JSC was taking in the interviews. This is commendable. The salutary effect of the criteria being publicly acknowledged, as they were during most interviews, is also noteworthy, and is important for the accountability of the JSC and the transparency of the process.

15. We also commend what appears to be a developing practice, evidenced during the April interviews, of individual commissioners being requested to deal with a specific topic (such as adverse comment) with each candidate. This is important way in which the JSC can ensure fair and substantively equal treatment of candidates and is to be commended.     

16. The October 2023 interviews will demonstrate the need for the criteria to be applied in a way that adapts to the specific needs of different courts. Candidates will be interviewed for leadership positions (the prospective Deputy Judge President of the Labour Court and Labour Appeal Court), specialist courts (the Electoral Court and the Labour and Labour Appeal Court), appeal courts (the Supreme Court of Appela and the Labour Appeal Court) as well as entry-level high court positions. It will therefore be necessary for the JSC to specifically tailor questions to ensure that the requirements of these positions are addressed. This will necessarily involve close consideration of the views of the heads of court concerned.

17. Candidates for the Electoral Court, Labour Court and Labour Appeal Court will clearly need to be questioned on their specific knowledge and experience in these specialised areas of law. Candidates for the Labour Appeal Court and Supreme Court of Appeal will naturally also need to have their appellate experience evaluated.

18. During the April 2023 interviews, we noted that some questions and answers during interviews for leadership positions did not provide the depth and granularity of engagement that might have been expected. With the position of Labour Court DJP being interviewed in the October round, judicial leadership will again be a focus for the JSC at this sitting.

19. The JSC criteria contain a brief exposition of leadership qualities under the criterion of ‘appropriately qualified.’^[12] Appropriate leadership qualifications are identified as including vision, leadership qualities, good interpersonal and caseflow management skills, maturity of judgment, and relational wisdom. Unlike other sections of the criteria,^[13] these qualities are not unpacked or elaborated on. We would suggest that, as the JSC continues to engage with the criteria, there would be merit in further developing and expanding the articulation of leadership qualities.

20. The laudable adoption of the JSC criteria has not yet, judging from the April 2023 interviews, resolved the longstanding challenge of interviews running over their scheduled time. Indeed, on the second day of the sitting, the JSC was at one stage running five hours behind its schedule. This is obviously undesirable and is unfair on both candidates and commissioners.

21. It is to be hoped that, as the criteria and guidelines become more engrained in the JSC’s practice, and as the guideline empowering the chairperson to “rigorously” enforce the requirement that questions be relevant to the criteria is applied, this situation will improve. We accept that it will sometimes be unavoidable for interviews to run over their scheduled time. But for interviews to last for more than twice their scheduled duration should be a very rare exception, not a regular occurrence.              

22. One final issue relates to the adoption of a code of conduct for commissioners. Following some of the controversial interviews in the recent past, there have been calls for the adoption of a code of conduct for JSC commissioners.^[14] Whilst the JSC’s criteria and guidelines include a section on the ‘approach to the interview process’, this does not include any reference to a code of conduct.

23. The FUL report says the following in recommending the adoption of a code of conduct:

“The JSC also needs to develop a code of conduct for commissioners. It should set out a standard, for example, for appropriate conduct during interviews. Breaches of this code must be addressed through an internal disciplinary mechanism with the necessary feedback being given to the commissioner’s appointing constituency. …”^[15] 

24. We would therefore encourage the JSC to consider the development of a code of conduct. This will provide an important level of accountability for the commission itself and will also help to ensure that the significant reforms the JSC has made through the adoption of the criteria and guidelines are cemented, and do not remain dependent on the approach taken by individual members of the commission from time to time.

Open vacancies

25. Prior to the April interviews, commentators expressed concern that the JSC had been unable to shortlist enough candidates for a vacancy on the Constitutional Court to hold interviews for that position, and that no candidates for the position of Deputy Judge President of the Labour Court or the Electoral Court position had been shortlisted.

26. Whilst it is encouraging that the Labour Court DJP and Electoral Court vacancies do have shortlisted candidates for the October round, it is a cause for great concern that the vacancy on the Constitutional Court was not even advertised for this sitting. 

27. We calculate that the inability to shortlist enough candidates for the Constitutional Court at the April sitting was at least the fourth instance in recent years where the JSC has not been able to shortlist enough candidates to hold interviews for Constitutional Court vacancies.^[16] There are also several examples of a bare minimum number of candidates being interviewed.^[17] This is an extremely concerning state of affairs, and we note that during a question and answer session at this year’s judiciary day, the Chief Justice indicated that the JSC would be likely to discuss this issue.

28. While we accept that the shortage of candidates for the Constitutional Court is not entirely within the JSC’s control, we would encourage the commission to continue to apply itself to considering what steps could be taken to ensure that more candidates make themselves available. The vacancy in question has stood open since October 2021, meaning that even if, optimistically, the vacancy is filled following the JSC’s April 2024 sitting, it would have stood open for two-and-a-half years or more. This is a highly unsatisfactory situation.  

29. Various explanations have been posited for why candidates may not be putting themselves forward, including that the manner in which some interviews have been conducted has had a deterrent effect.^[18] Even if this is only part of the reason, it highlights the importance of the JSC demonstrating that the new criteria and guidelines are applied clearly and consistently, so as to alleviate the concerns which have been raised about JSC interviews in the past.

Conclusion

30. The adoption of the JSC criteria and guidelines is a highly significant step, and we commend the JSC for the effort that has been made to develop and adopt them. It is only fair to say that the real test starts now, in seeing how the criteria and guidelines are applied. The criteria have the potential to restore confidence in the appointment process and negate much of the criticism the JSC has endured in relation to the judicial appointments process.    

31. As we have noted, some areas of concern remain. Seeing a vacancy on the country’s highest court left unfilled for so long a matter for grave concern. This round of interviews provides an opportunity, building on the positive developments observed in the April interviews, for the JSC to continue to alleviate concerns about the appointments processes. We are hopeful that, by continuing to develop its criteria and working practices, and by following them consistently during the interviews, the JSC will do so. 

FREEDOM UNDER LAW

 30 AUGUST 2023

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References:

• [1] https://www.freedomunderlaw.org/about-us/how-we-work/
• [2] See Freedom Under Law, Serving the judiciary? A review of the activities of the South African Judicial Service Commission 2009 – 2022. Available at: https://www.freedomunderlaw.org/wp-content/uploads/2023/01/FUL11_20012023-pages.pdf. 
• [3] FUL report, pp. 11 – 12.
• [4] FUL report, pp. 20, 22. [Add some words here re the latest JSC statements on criteria, we must acknowledge that they have sought comments and identified same, otherwise they’ll just say that we have been overtaken by events.]
• [5] FUL report, pp. 22 – 23.
• [6] FUL report, p. 23.
• [7] FUL report, p. 29.
• [8] FUL report, pp. 31 – 32.
• [9] FUL report, pp. 32 – 33.
• [10] FUL report, p. 34.
• [11] FUL report, pp. 21 – 22.
• [12] JSC criteria, 14.6.
• [13] Compared to, for example, the rich discussion of the meaning of the requirement of reflecting racial and gender composition, at 23 – 29.
• [14] See Greg Nicholson, “JSC must adopt a code of conduct and interview criteria before continuing its work – civil society groups” Daily Maverick 3 March 2022. Available at https://www.dailymaverick.co.za/article/2022-03-03-jsc-must-adopt-a-code-of-conduct-and-interview-criteria-before-continuing-its-work-civil-society-groups/.   
• [15] FUL report, p. 34.
• [16] The interview rounds in April 2012, April 2016, October 2022, and April 2023.
• [17] See the discussion at pp. 11 – 12 of the FUL report.
• [18] See the discussion of contentious interviews in the FUL report, pp. 13 – 18.