22 September 2021
The Judicial Service Commission (JSC) has recently been the focus of justifiable criticism, so much so that a constitutional challenge to the April round of interviews led to an ignominious capitulation by the JSC, without even an oral hearing of the matter.
In this instance, the Council for the Advancement of the South African Constitution (Casac) argued that the manner in which some members of the JSC behaved during the public interviews of candidates for judicial office, and also the manner which characterised their discussion of the candidates, rendered their recommendations irrational. Sadly, such aberrant conduct was not confined only to the party-political members of the JSC; indeed, some of the most objectionable interventions emanated from those representing the legal profession.
How has the JSC fared generally in its vital role of appointing judges? Despite some moments of controversy and some glaring and inexplicable anomalies, most would agree that it has done, until recently, a reasonable job in the execution of its appointments mandate. In particular, the JSC has vigorously pursued the demographic transformation of the judicial corps, in fulfilling its constitutional obligation to appoint “any appropriately qualified woman or man who is a fit and proper person” while simultaneously “[considering] the need for the judiciary to reflect broadly the racial and gender composition” of the South African population.
So the JSC had by 2013 already ensured that more than 60% of our judges were black, and over 30% were women; although leadership positions were still almost exclusively filled by men. An important contributor to this radical but overdue and entirely justifiable “recomposition” of the Bench was the widening of the pool from which judges were appointed, to include attorneys, law academics, and magistrates.
What criteria does the JSC use to make its decisions? Beyond the constitutional provisions set out above, three attempts have been made to interpret those requirements, situated within the context of the administration of justice and the practices and ethics of the legal profession in this country. When the JSC sat to recommend the appointment of justices to the first Constitutional Court in 1994, the following characteristics were highlighted:
- Independence, open-mindedness, integrity and courage;
- Diversity, empathy and sensitivity;
- Fairness, judgment and perceptiveness; and
- Stamina and industry; and vigorous internal debate.
In April 2009, the following statement was issued on behalf of the JSC:
“There are a wide variety of factors that are taken into account by the Screening Committee before deciding to include or exclude a particular nominee. These include but are not limited to the recommendation of the Judge President, the support of the candidate’s professional body, the need to fulfill the constitutional mandate… to ensure transformation of the Bench… the particular needs of the division concerned, the candidate’s age and expertise, including whether he/she has served as an acting judge in the division or at all, and the relative strengths and merits of the various candidates in relation to one another.”
Chief Justice Ismail Mahomed’s 1998 guidelines for appointability were subsequently subsumed within an official pronouncement during Chief Justice Sandile Ngcobo’s term as chair of the JSC, as follows:
At its Special Sitting held in Johannesburg on 10 September 2010, the Judicial Service Commission resolved…. to publish the criteria used when considering candidates for judicial appointments. This decision is in line with the JSC’s principle that the process of judicial appointments should be open and transparent to the public so as to enhance public trust in the judiciary.
The following criteria are used in the interview of candidates, and in the evaluation exercise during the deliberations by the members of the Commission:
Criteria stated in the Constitution
- Is the particular applicant an appropriately qualified person?
- Is he or she a fit and proper person, and
- Would his or her appointment help to reflect the racial and gender composition of South Africa?
- Is the proposed appointee a person of integrity?
- Is the proposed appointee a person with the necessary energy and motivation?
- Is the proposed appointee a competent person?
(a) Technically competent
(b) Capacity to give expression to the values of the Constitution
- Is the proposed appointee an experienced person?
(a) Technically experienced
(b) Experienced in regard to values and needs of the community
- Does the proposed appointee possess appropriate potential?
- Symbolism. What message is given to the community at large by a particular appointment?
What does it mean to be “appropriately qualified” and “fit and proper”? A decade ago, Cowen argued that “appropriately qualified” included forensic skill, intellectual capacity, writing and analytical abilities, knowledge of the law and of courtroom procedures, language skills, capacity for hard work, the ability to manage a courtroom, and breadth of professional experience. It is hard to disagree with this set of requirements.
It is also generally agreed that being a “fit and proper” candidate for judicial appointment requires at least:
- A demonstrated commitment to independence (both from party-political and personal interests), fairness, and impartiality;
- An unquestioned record of professional and personal integrity;
- A judicial temperament (including a degree of humility, courtesy, self-restraint decisiveness, and collegiality); and
- A resolute commitment to the values of the Constitution (including the rights to dignity, equality and freedom, respect for diversity, a degree of compassion and empathy, a critical respect for the separation of powers, and a commitment to the transformative goals of the Constitution).
Some may also expect aspirant judges to have some grasp of theories of adjudication, especially as the JSC now seems to have elevated service as an “acting judge” to the level of a criterion.
As regards the constitutional imperative for the demographic transformation of the judiciary, the practice of the JSC thus far seems to express this only in terms of numbers of women or black judges appointed. It is imperative that this requirement must also include the judicial philosophy and life experience of candidates, to ensure that all those appointed are committed to socioeconomic transformation and justice.
Beyond the criteria against which the candidates should be assessed, a fair and transparent process is essential for public confidence in judicial appointments. This means that interview questions must be linked directly and clearly to the above-listed criteria. In addition, the JSC should ensure that each candidate is treated in a broadly similar fashion, especially with regard to the length of the interview, and an equivalence of questioning. In this regard, the role of the Chief Justice as chair of the JSC is critical; part of the reason why the JSC has agreed to rerun the April interviews for Constitutional Court vacancies must be because of failures in this respect. In addition, the necessity to give some reasons for the JSC’s recommendations requires a reasonable degree of fairness of consideration of each of the candidates, and a rational level of justification for decisions. Again, the record of the deliberations in April failed this test of minimal fairness.
The JSC is set to hold interviews within the next few weeks for the appointment of at least four Constitutional Court justices, as well as candidates for appointment in other superior courts. It will also, in a separate process, interview candidates for the Chief Justiceship, where additional criteria will apply. Adherence to the highest standards of respectful professionalism and fairness should be demanded of every commissioner.
This piece was first published in the Daily Maverick on the 21st September 2021, as a collaborative op-ed by CASAC, FUL and Judges Matter.