This note discusses the JSC\u2019s April 2023 sitting.<\/p>\n\n\n\n
1. Background<\/strong><\/p>\n\n\n\n This was the JSC\u2019s first sitting in 2023. 21 candidates were interviewed for 13 vacancies (one candidate for the Gauteng High Court withdrew before his interview), comprising the nominee for President of the Supreme Court of Appeal; and vacancies for the Competition Appeal Court, Judge President of the Mpumalanga High Court, and on the Northern Cape, Eastern Cape, Limpopo, North West, and Gauteng High Courts. The final day\u2019s sitting was taken up by interviews of candidates for the chairperson of the Water Tribunal, which will not be discussed here.<\/p>\n\n\n\n A major concern that was highlighted<\/a> before the interviews was that for the second sitting in a row, the JSC had been unable to shortlist enough candidates to interview for a vacancy on the Constitutional Court. Advertised vacancies for Deputy Judge President of the Labour Court and Labour Appeal Court, and for a position on the Electoral Court, also failed to attract any shortlisted candidates. <\/p>\n\n\n\n No changes in the composition of the JSC were observed. Chief Justice Zondo chaired the first two days of the sitting, with Deputy Chief Justice Maya chairing the remainder. <\/p>\n\n\n\n The interviews were the first since the JSC released guidelines and criteria for comment at the end of 2022. Developments in this regard are discussed in detail under section 1 below. <\/p>\n\n\n\n This note discusses the interviews under various themes which were most striking during the interviews.<\/p>\n\n\n\n 2. The status of the criteria and guidelines<\/strong><\/p>\n\n\n\n The JSC announced that it had adopted the criteria at the beginning of the week\u2019s sitting. The Chief Justice began interviews on the first two days by advising candidates that the JSC had resolved to adopt criteria, and that one aspect of this was that the JSC would be robust when questioning candidates, whilst striking a balance to have due regard to the human dignity of candidates and showing them respect and courtesy. The Chief Justice remarked on the importance of the adoption of the criteria being known publicly. <\/p>\n\n\n\n The fact that the importance of the criteria is being publicly acknowledged, and that the JSC has taken the step of formally adopting them, is certainly to be welcomed. It suggests that, after years of arguments for the adoption of more detailed criteria falling on deaf ears, a critical mass of JSC accepts that they are necessary \u2013 and by implication, that the commission\u2019s past practices needed reform. This is a development that certainly can be supported and encouraged.<\/p>\n\n\n\n The immediate impact on the conduct of the interviews was subtle and undramatic. A JSC spokesperson confirmed that the JSC was indeed attempting to apply the criteria during this sitting (rather than having adopted them for application at subsequent sittings). As discussed further in the next section, there are certainly positive signs of incisive and rigorous \u2013 and relevant \u2013 questioning, but there continue to be significant strands of questioning that are irrelevant, repetitive, and unnecessary. A lack of granular detail in both questions and answers relating to the leadership positions also suggests that the criteria can still be developed in that area.<\/p>\n\n\n\n Nonetheless, the criteria do seem to represent a positive step forward, and they also seem to be making many commissioners mindful of the role they are playing. The following remark, by Judge President Mlambo, was repeated with slight variations to all the Gauteng candidates, and captures an intention on the part of the JSC which one can only hope will be continued:<\/p>\n\n\n\n \u201cThe bar that this commission has been consistent with this week has been to ensure that whoever it recommends for appointment is someone who\u2019s technically competent, someone who\u2019s a hard worker, and someone who\u2019s conceptually up to standard.\u201d<\/p>Judge President Mlambo<\/cite><\/blockquote><\/figure>\n\n\n\n The content of the criteria will be discussed in full in a separate note. In brief, the criteria appear to contain only minor changes and amplifications from the version which was circulated for comment at the end of 2022, with the core structure and substance remaining unchanged. It is notable that calls for the adoption of a code of conduct for commissioners, which became a significant focus following the controversial Chief Justice interviews in 2022, have not yet met with a response, and the criteria document does not deal with this issue.<\/p>\n\n\n\n The JSC also announced that it has adopted a complaints procedure, although this document has not yet been publicly released. It is likely that this relates to how objections against candidates are dealt with during the interview process.<\/p>\n\n\n\n 3. Interviews conducted better, but timekeeping remains a problem<\/strong><\/p>\n\n\n\n As discussed in the previous section, there were encouraging signs in the JSC\u2019s conduct of the interviews. The egregious ambushing and haranguing of candidates that has been seen in past interviews were mercifully absent. <\/p>\n\n\n\n This is not to be said that the JSC did not engage robustly. In several instances, candidates were subjected to tough lines questioning. For example, Judge Spilg faced prolonged scrutiny over a case where he appeared to have left a matter unfinalized, without an order or judgment being issued, after it was argued as an urgent application. Mr Manyathi, a (unsuccessful) candidate for the Gauteng High Court, found a judgment where he had deviated from the minimum sentence in a case of child rape placed under rigorous scrutiny. Whilst the JSC does still exhibit a tendency for commissioners to \u201cpile on\u201d and ask more questions than may be strictly necessary in these circumstances, it seemed to the author that rigorous scrutiny of these issues was appropriate and justified.<\/p>\n\n\n\n There were also instances where the new criteria and guidelines were expressly referenced. As already noted, Chief Justice Zondo prefaced each interview that he chaired by advising the candidates about the adoption of the criteria and the approach the JSC intended to take. The salutary effect of this public acknowledgment of the new criteria and guidelines does seem to be significant. A striking example of the new guidelines on the JSC\u2019s procedure occurred when commissioner Malema protected Advocate Holland-M\u00fcter from criticism of a judgment that had not been placed before him prior to the interview. Judge President Mlambo\u2019s remarks, quoted in the previous section, highlighting the JSC\u2019s search for technically competent judges, does seem to be a fair reflection of the approach taken by a significant number of commissioners. <\/p>\n\n\n\n At the conclusion of the interview of Ms Madhava, a candidate for the Limpopo High Court, DCJ Maya made the following comment:<\/p>\n\n\n\n \u201cThere is indeed an urgent need to advance women, not just in the judiciary \u2026 but women are not given a seat at the table simply because they are women. They must prove that they are able and competent to do the job at hand. Now, you have [avoided] Commissioner Baloyi, who was suggesting to you that you may benefit perhaps from further training \u2026 and maybe more acting stints, and it does not appear that you agree with her. \u2026 I just want to implore you to take that advice. It is sound advice, please take it to heart.\u201d<\/p>Deputy Chief Justice Maya<\/cite><\/blockquote><\/figure>\n\n\n\n The JSC has in the past often been criticised for over emphasizing the transformative provisions of section 174(2) at the expense of an evaluation of a candidate\u2019s technical competence. The view articulated by the DCJ suggests that commissioners are increasingly alive to the importance of balancing both aspects when evaluating candidates (the candidate in question was not recommended for appointment).<\/p>\n\n\n\n This new regime has not, however, yet resolved the timekeeping problem which has long bedeviled the JSC. Justice Molemela\u2019s interview lasted for 2,5 hours, Judge Spilg\u2019s for over 2 (those interviews were scheduled to last for 1 hour and 40 minutes respectively). Indeed, at one point on the second day of the sitting, the commission was running five hours behind their published schedule.<\/p>\n\n\n\n It is to be hoped that this situation will improve as the JSC continues to work with the new criteria and guidelines, and the chairperson begins to apply the guideline that they \u201crigorously\u201d enforce the requirement that questions be relevant to the criteria. It was noticeable that the timekeeping was better on the two days chaired by DCJ Maya, who made some interventions to note that a question had already been answered.<\/p>\n\n\n\n However, the interviews did leave the impression that the JSC is simply too big to be able to conduct concise, focused interviews, at least where candidates or the subject matter is high profile or controversial. Everyone, in these instances, wants to talk. Whilst the chair is now empowered to ensure that questions are relevant to the criteria, the experience of the April 2023 sitting suggests that this may not be sufficient to ensure that interviews are focused and keep to time. It may be necessary to look at ways of reducing the overall size of the JSC, if that objective is to be pursued.<\/p>\n\n\n\n A positive aspect of the interview process emerged through a behind the scenes peak at how the chair has been organizing the structure of questions. During the interview of Judge Mashiele, a commissioner queried why Commissioner Pillay was allowed to put multiple questions to a candidate (this in the context of commissioners being restricted to one question per candidate unless they motivated for further questions \u2013 a product of the JSC\u2019s struggles to keep to time on that day). The Chief Justice clarified that he had asked Commissioner Pillay to deal specifically with objections, and that limitations on her number of questions did not apply This seems a good approach to ensure that candidates are given the opportunity to deal with all adverse comment during their interviews, which should assist in ensuring fair and equal treatment of all candidates.<\/p>\n\n\n\n 4. Quality and availability of candidates<\/strong><\/p>\n\n\n\n This issue has been well canvassed<\/a> by Rebecca Davis in the Daily Maverick. It has already been noted that no interviews could take place for vacancies on the Constitutional Court, the Electoral Court, as well as the position of Labour Court Deputy Judge President. During the media briefing, a JSC spokesperson indicated that one nominated candidate had not been shortlisted, as it was not apparent that they had any adjudicative experience at all and they were \u201cnot recommendable.\u201d As a result, the JSC did not have enough candidates to shortlist. <\/p>\n\n\n\n When asked about the underlying cause of the lack of candidates and whether the JSC had thought of any solutions, the JSC spokesperson responded that it was not a question that was \u201ccapable of one answer.\u201d It was stated that the Chief Justice had bene approaching individuals to apply for the Constitutional court vacancy. <\/p>\n\n\n\n In the interviews that did take place, only two candidates were interviewed for five vacancies on the Competition Appeal Court, with both candidates seeming to lack significant competition law experience. Judge Nuku was described as lacking appellate experience and had a questionable record of being overturned on appeal. Judge Spilg retires in less than a year and faced sharp questions about his handling of certain matters, as discussed above. Only Judge Nuku was appointed and considering some of the reservations expressed during his interview, he may well consider himself lucky to have made the cut. The Limpopo High Court candidates were very poor, with no appointments being recommended. Several Gauteng candidates also faced searching questions about the quality of their judgments (see for example the discussion of Mr Manyathi\u2019s rape sentencing judgment above). The candidates for leadership positions did not always demonstrate the vision and command of detail one might have expected from a candidate in their position. <\/p>\n\n\n\n Looking ahead, it emerged during Justice Molemela\u2019s interview that the SCA has as many as six permanent vacancies currently or soon to be open. The challenges of not finding enough candidates for the Constitutional Court and other significant positions has been repeatedly emphasized. The apparent lack of quality candidates coming through at high court level therefore becomes an even more acute concern. Whilst the work that the JSC has done on the criteria and guidelines should, if followed in practice, help to increase confidence in the interview process and draw back candidates who might previously have been deterred from coming forward, it remains to be seen whether this will be enough to address an apparently shallow talent pool. It will be necessary to follow subsequent interviews closely to evaluate whether this round was an anomaly, or reflective of a broader problem.<\/p>\n\n\n\n 5. Conduct matters<\/strong><\/p>\n\n\n\n Although the JSC does not discuss complaints at the same time and with the same composition as it interviews candidates for appointment, a lot of information about the status of complaints against judges still comes out.<\/p>\n\n\n\n During the JSC media briefing, updates were given on the status of some high-profile complaints against judges. The complainant against Judge President Mbenenge is currently before the Judicial Conduct Committee, with submissions currently being exchanged by the parties. Litigation by Judge President Hlophe is still running its course in the courts, with the Judge President having brought an application for funding of the litigation. (This appears to refer to the JP\u2019s challenge to the process in relation to the longstanding complaint against him by judges of the Constitutional Court). The matter between JP Hlophe and DJP Goliath is currently before the \u201csmall JSC\u201d (which will consider the JCC recommendation to appoint a judicial conduct tribunal). The JSC was scheduled to meet at the end of the interviews to \u201cdiscuss and finalise\u201d the matter, as well as a further complaint before the small JSC. It has subsequently been reported<\/a> that the Hlophe\/Goliath matter was not finalized due to an \u201cimportant administrative matter\u201d needing to be resolved. <\/p>\n\n\n\n In a somewhat surprising move, the JSC announced that it has resolved to develop a sexual harassment policy. The policy is said to cover what should occur between a sexual harassment complaint being made and the Judicial Conduct Committee dealing with the matter, and specifically what the JSC should do, if anything, during this time period. Subsequent media reports<\/a> have suggested that the policy may seek to deal with the possible suspension of judges against whom such complaints are lodged while the complaint is pending before the JCC. It is not yet clear how this policy would actually work in practice, and how it would interact with the existing provisions of the JSC Act and regulations dealing with complaints against judges, and the suspension of judges. <\/p>\n\n\n\n During the media briefing, a JSC spokesperson acknowledged that the JSC was having ongoing discussions about timing and capacity issues affecting the Judicial Conduct Committee. Whilst some ideas have apparently been put forward, these have not been finalized and were not shared during the briefing.<\/p>\n\n\n\n It is important that the JSC does engage with this issue, as the interviews highlighted some serious shortcomings with the process of dealing with complaints against judges. During his interview, Judge Spilg indicated that he had been trying to establish details of the complaint for 2 years, prompting the Chief Justice to apologise for how the complaint had been handled. <\/p>\n\n\n\n Apparently, the Judicial Conduct Committee has not met for a year and has a major backlog of cases. In this context, it is hardly surprising that issues such as Judge Spilg\u2019s experience have occurred, but steps clearly need to be taken urgently to address the situation. FUL\u2019s recommendation that the JSC secretariat needs to be better capacitated to handled complaints seem to be especially relevant in this context. <\/p>\n\n\n\n It is understood that the current composition of the JCC (as recently re-constituted) is the following:<\/p>\n\n\n\n Deputy Chief Justice Maya<\/p>\n\n\n\n Justice Mabindla-Boqwana<\/p>\n\n\n\n Justice Makgoka<\/p>\n\n\n\n Justice Nkabinde<\/p>\n\n\n\n Justice Zondi<\/p>\n\n\n\n 6. Full list of candidates recommended for appointment<\/strong><\/p>\n\n\n\n