FREEDOM UNDER LAW FILES COURT PAPERS TO CHALLENGE JSC APPOINTMENT DECISIONS

Freedom Under Law (FUL) has filed papers in the Gauteng Division of the High Court, Pretoria, challenging the JSC’s decisions in filling vacancies on the Supreme Court of Appeal at its sitting in October 2023. The JSC recommended the appointment of only two candidates for four vacancies, leaving the remaining two vacancies open.

The legal challenge comprises two parts. In part A, FUL asks that the JSC be ordered to determine whether the remaining candidates are fit for appointment, and if so to fill the two remaining vacancies on the SCA. FUL is asking for Part A to be heard on an urgent basis.

In part B, FUL seeks to address underlying material issues in the manner in which the JSC conducts its processes by seeking an order that the JSC develop and publish criteria to assess candidates for appointment through an assessment of objective criteria, and to require commissioners to assess candidates in writing for compliance with these criteria.

The full set of papers can be found here:

Supplementary Founding Affidavit:

The main issues in the case are distilled below: 

The application is brought in two parts:  Part A (‘the quick fix’) seeks to review (on a semi-urgent basis) and set aside the JSC’s decision to terminate its deliberations without considering whether to fill the remaining vacancies on the SCA, and whether to do so by recommending any of the remaining candidates for appointment. 

We seek an order directing the JSC to urgently reconvene to consider  if any of the remaining candidates are considered fit for appointment, to determine which two candidates are most suitable for appointment and duly recommend them for appointment to the SCA. The eight judges who were not selected for appointment by the JSC (‘the remaining candidates’) are cited as the second to ninth respondents in the application given their interest in this relief. 

Part B, which is not brought on an urgent basis, seeks to declare the JSC’s failure to develop, publish and apply assessment criteria (as distinct from the JSC current guidelines and criteria) for the interviewing and selection of candidates as judges unlawful. 

Specifically, we seek an order directing the JSC to (i) develop and publish assessment criteria to be utilised and applied by Commissioners during the interview and selection process of candidates for judicial appointment, and (ii) that each Commissioner assess each candidate, in writing, for compliance with its published assessment criteria when it recommends candidates for judicial appointment. The application does not seek to set aside any of the recommendations for appointment made by the JSC at the meeting of 2 and 3 October 2023.

Expanded Summary (aide memoire for media)

The JSC is a body established by section 178 of the Constitution, vested with the powers assigned to it in the Constitution and by national legislation. It serves an important gatekeeping function in respect of the judiciary by interviewing candidates for vacancies on the bench and making recommendations for their appointment.  The JSC’s role in creating and maintaining a competent, impartial, independent, and accountable judiciary cannot be overemphasized. 

On 18 May 2023 the JSC published notices in the media calling for nominations of interested persons to fill vacancies at various courts, including five at the SCA. A number of candidates were nominated to fill these vacancies, and following an internal screening process, the JSC published its shortlist of candidates to be interviewed and considered for appointment. The JSC further explained that while five vacancies at the SCA had initially been advertised, one vacancy had been withdrawn and interviews would therefore be conducted to fill only four vacancies. 

Over two days, on 2 and 3 October 2023, ten candidates were interviewed by the JSC. Following the interviews, the JSC deliberated in private and voted in secret on the candidates. On 3 October 2023, the JSC announced that it had resolved to recommend two candidates for appointment to the SCA. The JSC did not recommend any of the remaining candidates for appointment. Consequently, the two remaining vacancies were left unfilled: the JSC appears to have chosen to prefer a vacancy over any of the remaining candidates. 

In response to a request by the Council for the Advancement of the South African Constitution (CASAC) for written reasons for its decision not to recommend sufficient candidates to the fill all the vacancies at the SCA, the JSC indicated that: (i) each candidate had to secure 12 votes to be recommended for appointment (given that there were 23 commissioners eligible to vote); (ii) the JSC conducted two rounds of voting: in the first round one candidate obtained 19 votes and four candidates obtained 12 votes each, to resolve the tie, a second round of voting was undertaken in which one candidate obtained 20 votes and one obtained 12 votes; (iii) since only two candidates obtained 12 votes or more (in the second round), the JSC could only advise the President to appoint those two candidates; (iv) no specific decision was taken not to fill all four vacancies; and (v) contemporaneous reasons for its decision to only recommend two successful candidates had not been recorded.

In the application, FUL challenges the JSC’s decision on several grounds. First, FUL contends that the JSC’s failure to fill the remaining two vacancies is irrational. In recommending only two candidates to the President for appointment, the JSC failed to fill two vacancies at the SCA, apparently without even considering whether it was prudent to do so. In failing to consider whether the two remaining vacancies should be left open, the JSC derogated from its constitutional duty to recommend candidates for appointment as judges and irrationally abandoned its own appointments process. Having accepted that the remaining candidates were fit and proper and appropriately qualified persons, the sole reason for failing to appoint any of them was the fact that they did not receive sufficient votes in the second round of voting (notwithstanding that some had done so in first round of voting). Thus, the failure to take a decision not to recommend any of the remaining candidates for appointment (and particularly those candidates who were considered suitable for appointment in the first round of voting) was irrational and unconstitutional.

Second, FUL contends that the JSC’s failure to fill the vacancies is a violation of its constitutional duties. The JSC has a duty in terms of section 174(6) of the Constitution to recommend candidates for judicial appointment to the President and a duty in terms of section 165(4) to assist and protect the courts by ensuring their ‘effectiveness and accessibility’. The effectiveness and accessibility of courts requires the appointment of sufficient permanent judges to handle the courts’ workload. These duties are fulfilled when the JSC takes appropriate action to appoint capable, competent, experienced, and suitable persons, with demonstrated judicial merit, as judges. In failing to recommend candidates to fill the remaining two vacancies on the SCA, the JSC has failed to fulfil this constitutional duty.

Third, FUL contends that the JSC’s voting procedure was irrational. In the first round of voting, five candidates secured the required minimum number of votes for appointment. More candidates were considered suitable for appointment than there were vacancies.  But the JSC could not simply appoint two of the four remaining candidates with the highest number of votes because there was a tie between them (all having received 12 votes). Therefore, a tiebreaker was considered necessary. In the second round, only two candidates secured the required minimum number of votes needed for appointment. The process that the JSC adopted resulted, not in a tiebreaker by which the JSC could select four candidates for appointment from the five candidates who had secured sufficient votes in the first round of voting, but in three of the candidates who had been considered suitable for appointment in the first round suddenly (and without any explanation) being disqualified in the second round. This was an irrational procedure. 

Fourth, FUL contends that the JSC failed to afford the remaining candidates a fair hearing. It is clear from the JSC’s response to CASAC that disqualifying allegations were permitted to be raised against a candidate during the JSC’s deliberations on 2 and 3 October 2023, despite there being insufficient substantiation for the allegations and without the candidate being given an opportunity to respond to them. This constitutes a breach of the audi alteram partem principle and the JSC’s own Criteria and Guidelines on Judicial Appointments. Accordingly, the JSC allowed itself (through one, or more Commissioners) to arrive at a decision by reference to an irrelevant and process-poisoning consideration.

The application is brought in two parts. Part A challenges the JSC’s (i) failure to consider whether to fill the two remaining vacancies; (ii) its failure to consider whether the remaining candidates should be recommended for appointment; and (iii) its decision not to recommend any of the remaining candidates for appointment. FUL has not impugned the interviews of the JSC on 2 and 3 October 2023 and does not seek an order setting aside the proceedings. There would, accordingly, be no need for the process to start afresh or for the candidates to undergo another round of interviews once these proceedings have been finalised. All that is required is for the JSC to reconvene its meeting of 2 and 3 October 2023 to consider whether any of the remaining candidates are fit for appointment to the Supreme Court of Appeal; and if more than two of them are fit for such appointment, to determine the two most suitable for such appointment; and recommend the candidates so identified for appointment to the Supreme Court of Appeal.

Part A is brought on a semi- urgent basis as FUL is not likely to obtain substantial redress at a hearing in the ordinary course. This is because: (i) the matter concerns the failure of the JSC to perform its constitutional duties and it is therefore in the interests of justice that the constitutionality and lawfulness of the JSC’s failure be tested as soon as possible; (ii) it is critical for the administration of justice generally and at the SCA in particular that this matter is resolved urgently –  the SCA is under-resourced and requires a sufficient number of permanent judges of sufficient quality and experience to function effectively; and (iii) unless this matter is resolved urgently, the remaining candidates who were interviewed and considered for appointment on 2 and 3 October 2023 may become unavailable for appointment.

Part B is a broader challenge and is not brought on an urgent basis. In Part B, FUL seeks an order that declares the JSC’s current selection process unlawful and invalid, and that directs the JSC to develop, publish and apply assessment criteria against which its commissioners are required to assess candidates for appointment as judges.  It further seeks a direction that, when the JSC selects candidates for appointment as judges, each Commissioner is required to assess each candidate, in writing, for compliance with its published assessment criteria. These criteria will evaluate, inter alia, each candidate’s fitness for the bench, and commitment to transformation.

At present, the JSC’s criteria for the selection of candidates do not go far enough and are not necessarily complied with. At the meeting of 2 and 3 October 2023, unsubstantiated allegations of racism were ventilated against a candidate and apparently influenced the vote in circumstances where the impugned candidate was not afforded a right of reply. In addition, the JSC has failed to ensure that there are adequate systems in place to record the contemporaneous reasons for its decisions leading to the ex post facto production of vague and incomplete justifications. Finally, there is also no way to know whether Commissioners are exercising a legitimate vote – this is because voting is conducted in secret, and Commissioners are not required to justify their vote. 

The process FUL proposes in response to these shortcomings builds on the requirements of the Constitution, the Lilongwe Principles and the JSC’s own 2023 Guidelines. In each case, Commissioners will be required to score each candidate, in writing, for compliance with the published criteria as well as to write down any further reasons that they may choose to give either in support of or against any candidate. Commissioners will then hand in their written scoring and reasons in respect of each candidate when they cast their vote (which may be cast secretly). Such a process will provide a necessary safeguard to the constitutional integrity of the JSC’s process and will accord with the commitment in the Lilongwe Principles, and international best practice in relation to the appointment of judicial officers.

7 DECEMBER 2023

Update: 15 February 2024

Freedom Under Law brought an urgent application in December 2023 in the Pretoria High Court, in which it challenged the failure of the JSC to recommend candidates for appointment to the Supreme Court of Appeal following its interviews in October 2023. Five candidates initially received the support of more than 50% of the JSC members at the meeting, but when a second round of voting was held as there were only four vacancies on the Court, only two candidates received the support of more than 50% of the JSC. The JSC did not take further steps to fill the vacancies. The result was that two vacancies in the Supreme Court of Appeal were left unfilled despite the fact that the Court has a significant workload and is under considerable pressure because it does not have a full complement of judges. Moreover, the vacancies remained despite the fact that, as the JSC’s first round of voting revealed, there were appropriate qualified and fit and proper candidates for appointment. In FUL’s application, it was submitted that this failure to fill the vacancies was a dereliction of the JSC’s constitutional duty, and an irrational abandonment of the JSC’s own appointments process.

FUL’s application comprises two parts. In Part A it seeks to address the urgent situation that has arisen from the JSC’s failure to recommend any of the candidates to fill these two remaining vacancies in the Supreme Court of Appeal. Part B challenges the processes followed by the JSC and seeks to address the ongoing failures of the JSC properly to adjudicate applicants against constitutionally appropriate criteria.

FUL and the JSC have been engaging with each other constructively in order to address the urgent situation that has arisen because of the unfilled vacancies in the Supreme Court of Appeal and the JSC has agreed to an order in Part A of FUL’s challenge which requires it to conduct further interviews in April/May for the vacancies in the Supreme Court of Appeal. FUL welcomes this undertaking on behalf of the JSC. FUL notes that while the undertaking (and order) address the urgent situation in relation to the Supreme Court of Appeal, Part B of the application remains of critical importance.

FUL is liaising with the JSC regarding a joint approach to the Pretoria High Court for an expedited hearing in order to address the relief sought in Part B. In Part B, FUL seeks various orders, including relief to address the ongoing failures on the part of the JSC to follow a lawful and constitutionally compliant process, and requiring the JSC to develop and publish assessment criteria for the selection of judges”.