What Criteria Does The Judicial Service Commission Use For Appointing Judges?

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;
  • Intellect;
  • 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

  1. Is the particular applicant an appropriately qualified person?
  2. Is he or she a fit and proper person, and
  3. Would his or her appointment help to reflect the racial and gender composition of South Africa?

Supplementary Criteria

  1. Is the proposed appointee a person of integrity?
  2. Is the proposed appointee a person with the necessary energy and motivation?
  3. Is the proposed appointee a competent person?
    (a) Technically competent
    (b) Capacity to give expression to the values of the Constitution
  4. Is the proposed appointee an experienced person?
    (a) Technically experienced
    (b) Experienced in regard to values and needs of the community
  5. Does the proposed appointee possess appropriate potential?
  6. 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.

Hlophe Can’t Exercise Powers of a Judge Until Proper Investigation Completed, Says FUL

MEDIA STATEMENT BY FREEDOM UNDER LAW

26 January 2020

For over 12 years now Freedom Under Law (FUL) – an NGO established to protect and advance the rule of law across Southern Africa – has pressed for a decisive outcome in complaint after complaint relating to Mr Justice Hlophe, Judge President of the Western Cape.

The decade since has vindicated that assessment. The judge it described as ‘this highly talented man [who] carried the hopes of all who are passionate about transformation of the judiciary’, having been recruited at the age of 35 from the University of Transkei direct to the Cape Bench, has gone on to plunge the judiciary in more sordid scandal and public disrepute than any judge in its history.

It is nothing short of a disgrace that nearly 12 years on, the complaint laid by all Constitutional Court judges against Judge Hlophe for his attempt to interfere in their independent consideration of matters relating to then-President Zuma remains unresolved. FUL was obliged to institute legal proceedings against the JSC to compel it to do its duty. Its conduct was, embarrassingly, characterised by the Supreme Court of Appeal as nothing less than ‘irrational’. 

Now, with that complaint still not resolved, a fresh scandal has broken. It is hardly a year since the Supreme Court of Appeal found, in the most direct terms, in a case appealed to it, that he was guilty of bias. This not of a junior judge, but a judge entrusted to lead over 30 other judges.

In his valedictory address in the Constitutional Court late last year, retiring Justice Cameron singled out the Hlophe saga as a lingering cloud over legal life in South Africa. Yet it has continued – and this week it acquired a yet darker aspect.

This week the second most senior judge in the Western Cape lodged further complaints with the JSC, alleging attempts by Judge Hlophe to interfere in litigation. It also alleges physical assaults by Hlophe JP on other judges, as well as intimidation, victimisation and abuse. 

FUL supports Nadel’s call for the urgent suspension of Judge Hlophe. It is clearly right in principle: no judge should sit in judgment while himself facing serious allegations which go to his or her fitness to hold office, let alone lead a court.

Judge Hlophe’s response to this call by an important representative body of legal practitioners is very clear.

According to the official roll of the Western Cape High Court released for Monday he has made himself the presiding judge in its most public court: the motion court. There he will engage with legal practitioners and the ordinary, often unrepresented public.

This situation is intolerable.

 Meeting today, the FUL Board resolved unanimously that the time for platitudes and tired clichés is past. The current head of the Western Cape High Court is compromised. Until such time as a proper investigation is completed and all consequential processes – which may include impeachment – are completed,  Judge President Hlophe cannot be allowed to exercise the powers of a judge.