Wanted — decent candidates to be SA’s next judges
South Africa’s judiciary seems to be facing a growing problem: there aren’t enough candidates willing to be interviewed by the Judicial Service Commission to fill judicial posts. And as this week has shown, those who do put up their hands are often not the strongest picks.
After a week in which the Judicial Service Commission (JSC) interviewed candidates for vacant positions in the South African judiciary, the following posts will remain open: one position in the Constitutional Court, four positions in the Competition Appeal Court and one position on the Limpopo Bench.
In the case of the Constitutional Court and the Competition Appeal Court, there were not enough shortlisted candidates. This is something judicial watchdog Judges Matter highlighted in advance, noting: “There might be many reasons for this situation, but the most poignant seems to come from judges themselves, who (off the record) say they refuse to subject themselves to a process as chaotic and humiliating as the ‘current’ JSC interview process.”
The JSC this week has, in fact, conducted its interviews in a mostly fair, decent and substantive fashion — but the body is reaping the whirlwind sown over the past few years by previous commissioners like Dali Mpofu, during whose membership interviewees could legitimately fear being ambushed and shamed live in front of the nation.
But another issue emerged from the interviews to fill the vacancy on the Limpopo Bench, and was also evident further afield this week: a problem with the calibre of candidates who are willing to put themselves forward for nomination as judges.
Candidates lacking knowledge of basic legal concepts
“What this judgment reflects is a very tenuous grasp and understanding of the law of review.”
“If one goes through your reasoning, it is almost incomprehensible.”
“The judgment is replete with errors… I don’t know where to start.”
Those are just some of the comments made by JSC commissioners this week to candidates for judicial posts. In particular, the pool of people applying to be first-time judges appeared to be very shallow.
In at least six interviews, JSC commissioners pointed out to candidates that the judgments they had delivered while serving on the Bench in an acting capacity — a prerequisite for appointment as a permanent judge — were riddled with mistakes ranging from typographical errors to misunderstandings of foundational legal concepts.
Acting judges are normally selected by regional judge presidents and are usually advocates or attorneys with a decent amount of experience who are felt to hold judicial promise. Once the court head submits names to the minister of justice, they are then appointed in an acting capacity.
This week’s interviews must raise the question of whether there is sufficient scrutiny of this process, given the poor-quality judgments which appear to be delivered by these acting judges.
In one case, it was pointed out to a candidate interviewing for the Limpopo Bench that she had handed down a judgment in a civil matter which referred to a party as being “found guilty”, a concept which exists only in criminal law. In civil law, the correct language would be “found liable”.
Interviewing candidate Thembi Bokako on Thursday for a post at the Johannesburg high court, commissioner Kameshni Pillay did not mince her words.
“I want to demonstrate how enormous the risks really are [of appointing you],” Pillay said, pointing out the numerous serious errors in a significant matter the acting judge had been assigned: a Solidarity challenge to health legislation.
“When you’re discharging your judicial function, you’re doing so in a way that has consequences,” Pillay said.
In the case of Bulawayo Manyathi, a magistrate interviewing for the Gauteng high court, he was revealed to have deviated from the minimum sentence for child rape in a case he handled. Manyathi should have imposed a life sentence in the case of a 39-year-old man found guilty of raping a 13-year-old family member, but instead handed down just 12 years.
In front of the JSC, Manyathi defended his sentencing on the grounds that judges should not “slavishly” follow minimum sentencing rules, and that a life sentence in this instance would have been “disproportionate” given the relative lack of violence. The JSC commissioners, to put it mildly, did not concur.
JSC questioning turned on its head
For the past few chaotic years, questioning at the JSC by a number of rogue commissioners focused heavily on issues of identity and politics. Replacement commissioners like Pillay, fellow respected advocate Tembeka Ngcukaitobi and Professor Clement Marumoagae have now chucked that out in favour of what the JSC should actually be doing: closely testing candidates on matters of law.
But the results, this week at least, have not been encouraging — in terms of what they have revealed about the calibre of people putting themselves forward for judicial office.
What has to be hoped is that stronger candidates will have observed the more dignified and respectful functioning of the JSC this week and be encouraged to avail themselves for nomination in future.
As an indication of the new leaf turned over by the JSC, viewers on Thursday would have noted the intervention by commissioner Julius Malema, during the interview of advocate John Holland-Muter for the Gauteng Bench, to complain that a line of questioning amounted to an “ambush”.
Holland-Muter is a white man, specimens of which category have been subjected to some of the most questionable treatment at the JSC in recent years at the hands of Malema and his ilk. To see Malema ride in to rescue Holland-Muter in this manner was almost surreal. Long live the new, well-behaved JSC, long live! DM