If you haven’t been looking, you might have missed the utter shock and perhaps trepidation with which Deputy Chief Justice Raymond Zondo uttered the words, “it’s almost as if there is no government”. He was leafing through a damning affidavit, drafted, but ultimately not signed, by the former Auditor-General Kimi Makwetu in which he spelt out how irregular expenditure at the Passenger Rail Agency of South Africa had skyrocketed from less than a billion to more than R23-billion in a few short years.

The evidence from Makwetu, delivered posthumously and in the cold-hard accuracy we came to associate with his annual reports, is that not only is the executive arm of the government in a shambles, parliamentary oversight is all but dead and buried. The reality of two arms of state limping, captured, a joke.

Which is why, when the Judicial Service Commission (JSC) released its shortlist for 24 vacancies, it’s important to take note. For a long time, South Africans have paid little attention to the goings-on in the judiciary. Other than the intrigue in scandals relating to the Western Cape Judge President John Hlophe, and the hearings held to appoint the Chief Justice, there is little regard given to the appointment, performance and removal of judges. It’s an unfortunate trend in a relatively new constitutional democracy – and one that should not take a firm hold.

Like with most things, the Covid-19 pandemic threw off the usual schedule for the appointment of judges. The JSC, the body responsible for appointing and disciplining judges, ordinarily meets in April and October of each year to interview judges whose names are then submitted to the president for appointment.

“It is a very big year and actually there are two shortlists. They are combining the shortlist from April 2020 with the list that would have covered both October and April 2021,” Mbekezeli Benjamin, researcher at Judges Matter, explains.

Along with the Democratic Governance and Rights Unit at UCT, Judges Matter keeps a close eye on the appointment and disciplinary cases of judges as well as the overall functioning of the courts.

It will likely stream the proceedings, making it one of the few sources where citizens will be able to watch the interviews uninterrupted.

The April interviews are expected to take 10 days and about 80 candidates are expected to be interviewed by members of the JSC for 30 positions. The commission comprises:

• Chief Justice Mogoeng Mogoeng;
• Supreme Court of Appeal president Judge Mandisa Maya;
• Justice Minister Ronald Lamola;
• Six politicians designated by the National Assembly;
• Four members from the National Council of Provinces;
• Two practising advocates;
• Two practising attorneys;
• One law professor; and
• Four members chosen by the president.

Two of the vacancies are for replacements for Constitutional Court Justices Edwin Cameron and Johan Froneman, who retired in August 2019 and June 2020 respectively. While the vacancies do not leave the court with an issue of quorum – the Constitution dictates that any case should be heard by no less than eight judges – the full complement of 11 judges does avoid the chance of the court being split down the middle in the event that they are unable to reach a consensus on a decision.

“The Constitutional Court has two vacancies at the moment and they actually cannot remain unfilled because later in the year more vacancies are coming up, at least three. So, there will be five vacancies in the Constitutional Court and that will impact the functioning of that court, so those positions need to be filled quite quickly,” Benjamin notes.

Chief Justice Mogoeng’s term also comes to an end in 2021. Section 176 of the Constitution mandates that Constitutional Court judges serve a non-renewable term of 12 years so even though he has only been Chief Justice for 10 years, he will step down from the Constitutional Court this year since he first joined the court in 2009. Along with the other vacancies arising, the court will be significantly altered by the end of 2021.

“That is one of the legacies of Nelson Mandela because in 1994 he appointed a big batch of judges. Since then, for example, in 2009, five of them retired at the same time. And you then have about five coming in at the same time. So there are times when the Constitutional Court is completely remade and this is one of those times,” Benjamin says.

The Constitution does allow for unfilled vacancies to be occupied by acting judges and for the Constitutional Court, this usually entails senior judges from other courts visiting the court for a term of three months or longer. However, with several judges leaving the court in one year, the JSC is unlikely to want to delay any further.

“The JSC normally has two sittings per calendar year. In 2020 due to the Covid-19 pandemic, the two sittings were both postponed to April 2021. It did obviously affect the process of interviewing judges as the sittings didn’t take place. The JSC will consider all available options in an endeavour to ensure that the April 2021 interviews proceed,” JSC spokesman Carel Fourie explained.

Asked about whether the commission will meet virtually or in person, Fourie said: “The JSC will consider all available options in an endeavour to ensure that the April 2021 interviews proceed.”

However, the issue of the Constitutional Court posts is not the only area of concern. In 2020, the JSC advertised two vacancies at the Electoral Court and no nominees came forward.

“One vacancy for the position of a judge of the Electoral Court was again advertised but no candidate was nominated for this position and therefore no one was shortlisted. The vacancies will be advertised to be considered during the October 2021 sitting,” Fourie said.

In the meantime, the court will likely have acting judges, but Benjamin raises the question of how this will affect the public in an election year, especially since the terms of two other Electoral Court judges will end this month.

“The terms of the two judge members (Colin Lamont and Willem Wepener) are expiring on 14 February 2021. By the end of the month, it will only have the chairperson and non-judge member to decide electoral disputes. It is a concern because this is an election year. Municipal elections are more busy than the national and provincial elections. So, you need a court that will be operating at full function and high capacity because electoral court cases have to be dealt with quite urgently.”

The April round of interviews also sees candidates vying for five deputy judge president vacancies, in the Free State, Gauteng, Limpopo, Northern Cape and Mpumalanga. Deputy judges president play a crucial role in the administration of courts, including in case-flow management. In provinces that have more than one division, like Gauteng, each deputy judge president oversees one portion. The retirement of Judge Phineas Mojapelo in 2020 has left one of the country’s biggest divisions without a dedicated administrator. In provinces where there are vast distances like Limpopo, a deputy judge president is often tasked with managing a circuit court that services far-flung areas.

However, one deputy judge president position that has remained vacant is in the Labour Court, and Benjamin believes the JSC ought to prioritise this vacancy in 2021.

“The vacancy that has remained for about four years in that court is the deputy judge president. The judge president of the Labour Court sits in Joburg and that person is supposed to run the biggest section of the court actually… That position has been vacant and there has been an acting judge for the past four or so years. The JSC has tried in the past but they couldn’t fill that position and I was hoping that they would do so this time around. It is a concern when you think about the number of retrenchments that are currently happening, the number of cases coming into that court are quite a lot and you need someone permanent who will be an efficient administrator and who will be able to deal with some of the backlogs that are added by Covid,” Benjamin says.

Public participation remains a concern, both for the JSC and organisations such as Judges Matter. Considering that more than R1-billion is allocated for judges’ salaries annually, South Africans would be doing themselves a favour by submitting comments on the candidates who have been shortlisted by the 8 March deadline. Comments can be made to [email protected] and [email protected] and copy [email protected]  DM

Dianne Hawker is a legal journalist with 17 years of reporting experience. She’s covered the appointment of judges for more than a decade. Dianne is a News Editor at Newzroom Afrika.