This week, the Judicial Service Commission (JSC) will be meeting to interview prospective judges. With the interviews only lasting for three days, it is a shorter sitting than usual, but as important as ever. The positions to be filled include three lengthy vacancies: one each in the Constitutional Court and the Electoral Court, and the position of head of the Land Court.

With national elections looming at the end of next month, the Electoral Court vacancy is no less important than those in more high-profile courts.

In October 2023, the JSC interviewed candidates for four vacancies in the Supreme Court of Appeal (SCA). Controversially, the JSC only recommended the appointment of two candidates, leaving the remaining two vacancies open and thereby overlooking highly regarded candidates. After Freedom Under Law (FUL) brought a legal challenge to the process, the JSC agreed to fill the remaining two vacancies and is due to hold interviews to do so in May.

COURT CHALLENGES

This is not the first time that the JSC has been forced by court challenges to revisit its decisions. In 2021, interviews for the Constitutional Court were so egregiously conducted that the JSC, faced with a legal challenge by the Council for the Advancement of the SA Constitution (Casac), opted to re-run the interviews rather than defend its process in court.

Therefore, much attention will be given to how the JSC might conduct this week’s interviews, and whether the FUL litigation will have a corrective effect on the shortcomings which became so evident in the October 2023 sitting.

It is to be hoped that positive changes will be seen, although we should be circumspect about celebrating any apparent improvements.

Following the 2021 Casac litigation and coinciding with the chairing of the JSC passing to current Chief Justice Raymond Zondo, there were encouraging signs of a more measured, considered approach to the interviews.

Hope was further encouraged when the JSC, finally responding to years of advocacy, published extensive supplementary criteria to guide the interviews.

This development ought to have heralded a new era, in which the JSC would be tightly focused on relevant criteria for appointing judges and would treat candidates with dignity and fairness.

HOPES DASHED

A little over a year later, these hopes have been dashed. The JSC’s conduct of the October 2023 SCA interviews showed that many commissioners had little regard for the criteria, showing that, while the JSC may have adopted excellent criteria on paper, it has not yet managed to integrate these into its working practices.

The second part of the legal challenge of FUL, which remains ongoing, seeks to address this by challenging the failure of the JSC to evaluate candidates against clear, constitutionally mandated criteria.

Ideally, of course, it would not be down to civil society organisations to force the JSC to follow proper processes. But the commission has left organisations that are concerned with the rule of law with little choice but to turn to the courts to remedy such serious shortcomings.

In addition to hoping for signs of meaningful improvement from the JSC in how it conducts the interviews, what else do we have to look forward to in this month’s interviews?

The possibility of the vacancy in the Constitutional Court being filled, having stood open for more than two years, is extremely significant. It can only be hoped that this process will not again be hamstrung by the JSC’s failure to exercise its mandate properly.

For a vacancy to have been open in the highest court for so long is a highly undesirable state of affairs, particularly considering the much-publicised challenges the court has been experiencing in dealing with its workload.

The shortlisted candidates provide an interesting diversity, comprising an academic (Professor David Bilchitz), two practising advocates (Matthew Chaskalson SC and Alan Dodson SC), as well as two SCA judges (Tati Makgoka and Ashton Schippers).

The role of the JSC in respect of this vacancy is more limited, as it must list four of the candidates, from which the president will make the appointment. But it will be intriguing to see how it handles the unusually diverse professional backgrounds of the candidates.

The position of Judge President of the Land Court will also be keenly contested, with SCA Justice Zeenat Carelse competing against high court judges Susannah Cowen, Shanaaz Mia and Muzikawakhelwana Ncube.

It seems that the successful candidate will have their work cut out for them. During last year’s judiciary day, when the judiciary’s annual report was presented, the Land Court was identified as having struggled significantly with finalising cases.

One of the reasons identified was that the court had not had a permanent head for more than a decade, so the outcome of these interviews should at least be a step towards addressing the court’s challenges.

Finally, as noted earlier, the Electoral Court vacancy carries particular significance, with the elections around the corner. The Electoral Court will have to deal with legal challenges relating to the election – matters that are almost inevitably going to be both highly important and extremely urgent. This vacancy has also been open for some time.

Gauteng High Court judges Leicester Adams and Seena Yacoob are under consideration, and one can only hope that an appointment will be made swiftly, to ensure that the court has its full complement of judges available for what is sure to be a busy time for it during the elections.

Those who watch the JSC process repeat the mantra that the process matters, because it is important who judges are, and that the process leads to the best possible candidates being appointed in a fair and transparent manner. This remains as true as ever.

Unfortunately, the performance of the JSC over recent years means that nothing about this week’s interviews can be taken for granted. Will the JSC give us a positive surprise, this time, by conducting a fair and rigorous process that tracks their criteria, and gives the courts the judges they need?

– February is a legal executive officer, and Oxtoby a legal research consultant, both with Freedom Under Law