South Africa

JUDGES MATTER OP-ED

Judicial appointments process research shows cause for much concern, but there’s hope

Judges Matter participated in a panel discussion reflecting on the recent Chief Justice interviews that have come in for some harsh criticism. The panel discussion focused on key aspects of the CJ interviews, and ideas for reform to the JSC. (Photo: Twitter / @WhyJudgesMatter)

The Judicial Service Commission interview process is fraught with inconsistencies that seriously challenge the credibility of the entire appointment process, new research by Judges Matter shows. The first thing the JSC needs to do is develop — and then follow — a clear set of objective criteria to guide its decision making.

The controversial way that judges are appointed in South Africa has come in for sharp criticism, with trenchant calls for a complete revamp of the system, including booting politicians off the Judicial Service Commission (JSC). These solutions seem easy, but are they remedying the right problem?

Also read: Judicial Service Commission to be watched this week to see if it can salvage its tattered reputation

In new research published by Judges Matter in an international academic journal, we found that the problems are deeper than meets the eye. The JSC interview process is fraught with inconsistencies that seriously challenge the credibility of the entire appointment process. In our view, the JSC developing a clear set of criteria for judicial appointments would be one of the first solutions to fixing the problem.

Historical context of the JSC

In 1994, there was understandably deep mistrust of the then apartheid judiciary. There were legitimate concerns of whether conservative judges who had previously sentenced anti-apartheid activists to death would be able to interpret a new human rights-based legal framework or, even worse, stifle the new government’s development programme.

To guard against this eventuality, and break with the nepotistic past practice of judicial appointments, the Judicial Service Commission was established. Chaired by the Chief Justice, the JSC is set up to primarily appoint judges to the judiciary, and also to hold them accountable for misconduct. The JSC is meant to have a broad representation of lawyers, judges, members of Parliament and civil society. 

Under this new dispensation, and in a boost for transparency, aspirant judges would be interviewed in public by renowned human rights lawyers such as George Bizos SC, who would scrutinise a candidate’s track record and check their commitment to the values of the new Constitution, including equality, human dignity and the pursuit of human rights and freedoms. Only those who fit this bill would be appointed.

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The JSC’s procedure

At its founding, the law gave the JSC a free hand in how it would go about its work of appointing judges. Section 178(6) of the Constitution gave the JSC broad discretion to determine its own procedure and processes.

To boot, there was no guidance on how judges were to be disciplined (which the never-ending John Hlophe saga illustrates in tragically vivid colour). In subsequent years, the JSC has made several attempts to define and redefine what qualities it looks for when appointing judges.

The judicial selection and appointment process begins with the JSC advertising existing judicial vacancies. Following applications from aspirant judges, the JSC shortlists them for interviews that usually take place in April and October of each year. Following these interviews, the JSC recommends candidates for appointment by the President. In respect of candidates for the Constitutional Court, the JSC must send a list of three more names than is needed to fill a vacancy (at least four names for one vacancy, five for two, and so on). The President then makes the final appointments of judges.

In 1998, then Chief Justice Ismail Mohamed drew up a set of guidelines to assist the JSC in its work of interviewing and selecting judges. The Mohamed Guidelines were used in subsequent years until they somehow fell into disuse. 

In 2010, the JSC drew up new guidelines to add to and further clarify the qualities the JSC looks for in candidates. It is not clear if these guidelines still hold any currency, especially because none of the present members of the JSC were there when the guidelines were adopted. We had our suspicions, but instead of speculating, we set out to find evidence.

We conducted a qualitative research study to try to understand four questions:

  • Does the JSC apply criteria in its interviews?
  • If so, how does it apply those criteria?
  • What is contained in such criteria?
  • What impact does such application have on how the interviews are run?

How we did it

Judges Matter conducted a research study through detailed analysis of 123 transcripts of 119 candidates interviewed for the Superior Courts (high court judges) in the five-year period between October 2015 and October 2019. The analysis of this research formed the basis of our article published in the 2022 special edition of the British Journal of American Legal Studies.

In our analysis, we found that there are four major themes that dominated the questioning in most interviews, although they were far from being consistent. It is from these themes that we can possibly discern some type of criteria. The themes are:

  • Experience as an acting judge;
  • Transformation (diversity);
  • Questions of a technical character (question of law that relates to a particular legal subject area, such as family law); and
  • Questions of a jurisprudential nature (questions relating to a particular theory or understanding of law).

For each interview, we recorded whether any questions from each of these four themes were asked of the candidates. From each transcript, we also recorded the metadata of the particular candidate. This metadata included their title and name; the date and time of the interview; the declared race and gender of the candidate using the Employment Equity Act’s definitions of black and white (with black being a generic term to refer to Africans, coloureds and Indians); the length of the interview in minutes; and whether the candidate was recommended by the JSC and ultimately appointed by the President.

There were some limitations to the study that influenced our data and analysis, but their impact did not substantially affect the results. The most significant limitation was accessing interview-length data for 25 of the interviews done in the October 2015 round, as it was before Judges Matter started livestreaming the interviews and producing individual video clips of the interviews. These interviews were excluded from part of our analysis. 

The other limitation was that in our analysis we distilled only four factors that seemed to dominate interviews. We accept, however, that there may be other factors that influenced the course of the interview and the ultimate decision on who was recommended for appointment and who was not.

Findings from the research: ‘JSC, we have a problem’

Our chief finding was that the JSC interview process was fraught with inconsistencies and the lack of observance of any objective criteria or standards to guide the JSC’s decision-making on judicial appointments.

In only 19 of the 119 interviews over five years did the JSC ask questions that covered all four dominant themes — 15 candidates were only asked one of the four thematic questions.

In 50 of the interviews that we considered, the candidates were asked only two of the four thematic questions. Interviews in which at least two thematic questions were asked seem to result in a higher proportion of recommendation for appointment compared with those in which zero, one, three or four thematic questions were asked. Being asked three of the four thematic questions showed the highest relationship with appointment.

What all of this demonstrates is that there is a significant inconsistency in how the JSC asks questions, and, ultimately, how these questions influence the decision to appoint a candidate as a judge.

From the metadata, we also found that the interview length differed significantly. The JSC usually sets aside 40 minutes for each interview, regardless of the position interviewed for. Candidates who were interviewed for the maximum of 40 minutes stood a better chance of being recommended for appointment. Once an interview went on for longer than 60 minutes, the chances of that candidate being recommended (and ultimately appointed) seemed to drop significantly. 

The shortest interview was three minutes, whereas the longest was 114 minutes (nearly two hours). Surprisingly, the candidate interviewed for three minutes was recommended by the JSC and ultimately appointed by the President, but the candidate interviewed for 114 minutes was not.

What these findings mean: Our analysis

The findings confirm some of Judges Matter’s biggest concerns about the way the JSC interviews candidates. The wild inconsistencies in the questions asked, the discrepancies in the length of time allocated for each interview, and how these factors ultimately affect the decision for appointment are things that should worry us all about the judicial appointment process.

Of course, there is legitimate room for the JSC to vary the ways it interviews considered candidates. A mechanical process where candidates are asked standard questions with standard answers would defeat the robust, searching interview process we expect from the JSC. We expect that there would be many situations where candidates would be interrogated on issues such as ethics and integrity, jurisprudential philosophy or their understanding of the social determinants of crime, that could stretch an interview for much longer.

When one interview, however, goes on for nearly two hours while another in the same round lasts for only three minutes, legitimate questions have to be asked about how the JSC understands its mandate and processes. This is even more so when you consider that the three-minute interview led to the candidate being appointed whereas the two-hour interview did not.

One only needs to think back to the shocking interviews of April 2021, where commissioners harangued judges on cases a particular politician lost before that judge, or where both a Jewish candidate and Muslim candidate were asked whether their religious observances would interfere with their judicial responsibilities. These are not issues that should dominate an interview.

It came as no surprise to us when the Council for the Advancement of the SA Constitution (Casac) took the JSC to court to demand that these interviews be set aside. A court settlement was reached and the interviews were re-run. However, one candidate withdrew, not least because of the abuse and humiliation she had suffered at the JSC. 

This is yet again the risk of the JSC not having clear legitimate processes: good lawyers will refuse to subject themselves to a humiliating process where nothing about their professional experiences, integrity or values is asked and, instead, politicians and lawyers grandstand.

In our view, the JSC developing explicit criteria to guide its interview process will be the first important step in addressing some of the concerns raised by the evidence. What could these criteria include? There are plenty of examples from all over the world that the JSC can look toward. 

In 2020, Chief Justices of the southern Africa region developed the Lilongwe Principles and Guidelines on Selection and Appointment of Judicial Officers.

The Lilongwe Principles set objective minimum criteria for judicial appointments, and have excellence and merit at their core. The Lilongwe Principles also make room for a country with a difficult history such as ours, where systemic racial and gender discrimination meant that a vast section of our population was excluded from the legal profession, and how more of these people could be affirmed as judges.

The Lilongwe Principles go beyond the process of judicial appointment by providing guidelines on how interviews should be conducted, including length of time and the kinds of issues that may permissibly be asked at the interview.

There is hope

Although section 178(6) of the Constitution gives the JSC wide discretion to determine its own procedure, research by Judges Matter shows that the JSC is failing at developing a fair and credible process for judicial appointments. We looked at factors such as the length of interviews and the key questions asked to show that there are legitimate grounds for concern in how the JSC does its job. Of course, there may have been several others, but these were particularly useful as they provide objective bases for analysis. 

The evidence overwhelmingly shows that the JSC needs to articulate, publish and apply clear criteria for how it conducts interviews for the sake of fairness and the legitimacy of the entire process, and this needs to be done urgently. Criteria are only the first step, however, as the JSC also needs clear rules of procedure, but also a code of conduct for commissioners.

We are heartened by the fact that in its April 2022 sitting, the JSC has agreed to set the first day — Monday, 4 April — to discuss the JSC mandate and thrash out some of these issues. Its credibility — along with the reputation and esteem of the entire judiciary — rests on it getting this right. DM

Alison Tilley is the coordinator and Zikhona Ndlebe and Mbekezeli Benjamin are research and advocacy officers at Judges Matter, a civil society project that monitors the appointment of judges, their discipline for misconduct and the governance system of the judiciary in South Africa. For more, follow on Twitter @WhyJudgesMatter and visit www.judgesmatter.co.za

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