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JUDGES MATTER OP-ED

JSC interviews — a week that may well decide the next decade for South Africa’s judiciary

JSC interviews — a week that may well decide the next decade for South Africa’s judiciary
Illustrative image: President Cyril Ramaphosa receives the fifth and final Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State report from Chief Justice Raymond Zondo. | ANC. | The Constitutional Court. (Photos: Gallo Images/ Alet Pretorius | Gallo Images / Foto24 / Nicolene Olckers | Felix Dlangamandla)

The JSC’s sitting this week comes at a poignant moment: celebrating 30 years of democracy, an election fraught with uncertainty and a judiciary at a point of transition.

A week before the national elections, the Judicial Service Commission (JSC) will sit for marathon interviews for the next Chief Justice and the Supreme Court of Appeal. The interviews on 20 and 21 May are crucial to the future of the South African judiciary for the next decade.

Ten candidates are shortlisted for three vacancies on the SCA Bench. The SCA interview round is essentially a rerun of the October 2023 interview session. Then, the JSC interviewed 10 candidates but bizarrely failed to recommend candidates for two vacancies on the appellate court.

The NGO Freedom Under Law took the JSC to court over this issue. In an out-of-court settlement, the JSC agreed to rerun the interviews.

Five of the candidates who were in the October session are back: Eastern Cape High Court judges John Smith and Nozuko Mjali, KwaZulu-Natal high court judge Mokgere Masipa, and Gauteng judges Thina Siwendu and David Unterhalter. Judges Elizabeth Baartman (Western Cape), Piet Koen (KwaZulu-Natal), and Phillip Coppin (Gauteng) were last before the JSC some years ago, while Johannesburg judges Raylene Keightley and Leonie Windell are newcomers.

All 10 candidates are experienced, senior judges of the high court. They capture the full diversity of South Africa, on regional, racial and gender metrics. The JSC will have a tough job selecting the final three from the list.

The candidates

Although he has the least number of years as a permanent judge, Unterhalter leads the pack with 18 reported judgments and only one overturned on appeal.

A judge since 2010 (including an appellate judge in the Labour Appeal Court since 2014), Coppin has 17 reported judgments and has been overturned on appeal only six times.

 A former commercial attorney and judge since 2017, Siwendu has 15 reported judgments, with only five judgments overturned on appeal, and has acted at both the SCA and the Competition Appeal Court.

A judge since 2010, with 12 reported judgments and only four judgments overturned on appeal, Smith has acted at both the SCA and Labour Appeal Court.

A former law professor, Keightley has been a judge since 2016, with 15 reported judgments and only seven judgments overturned on appeal.

Masipa has been a judge since 2016, with seven reported judgments, and has been overturned on appeal only twice.

Koen has nine reported judgments, served seven terms acting on the SCA, and has been overturned nine times in the 18 years he’s been a judge.

A judge since 2013, Windell has more than 400 written judgments overall, five reported, and only five overturned.

Read more in Daily Maverick: Better to wait for the right JSC candidate than merely rush in like fools

With 15 years’ experience as a judge, including six terms acting on the SCA, Baartman has two reported judgments and has been overturned on appeal six times.

Mjali has 14 years’ experience as a judge, has a single reported judgment and has been overturned twice.

Urgent task

The task of selecting the very best judges for the SCA could not be more urgent. Over the last 10 years, through natural attrition, including several promotions, retirements and two deaths, the SCA has lost more than 240 years of appellate judicial experience.

In the last five years alone, at least 18 of the 25 SCA judges have been replaced. With the retirement of Justice Xola Petse in July, only two of the remaining judges will have more than a decade’s experience on the SCA.

The SCA plays a crucial role in our court system. As a generalist appellate court, it hears appeals from all high courts across the country. It plays a supervisory role over the development of the law, providing crucial clarity and guidance to all the courts below it.

Just last week, the SCA clarified the rules for the complex concept of “pure economic loss” in the law of delict. It reversed a decision of the Johannesburg High Court holding Old Mutual liable for a R1,7-billion loss to victims of the Fidentia scandal.

Despite its challenges, the SCA is still the best-performing court in SA. According to the Judiciary Annual Report 2021/22, the SCA exceeded its 80% target of finalised cases and has held this record for the last five years. On average, the SCA still delivers its judgments within a month or two of the hearing.

However, there are rising concerns about a few exceptions where the SCA has taken months and the general quality of its judgments. The JSC therefore has its work cut out.

While the JSC is scheduled to fill only three vacancies on Monday, 20 May, on 14 May it sent a call for nominations for three more vacancies it will need to fill by October. In my view, there is nothing in the law that prevents the JSC from filling these three additional vacancies at Monday’s sitting.

While the JSC’s written rules of procedure require that it go through a formal process of shortlisting and interview, the rules still allow the JSC to depart from that procedure on good cause shown. There are compelling reasons why it must do so this time.

First, several of the candidates to be interviewed on Monday have been interviewed before and it would save tremendous cost, time and effort to make those appointments without additional interviews.

Read more in Daily Maverick: ConCourt interviews — JSC fails to recommend enough candidates for vacancy after two gruelling days

Second, the October sitting will be the biggest since the pandemic: there are 26 vacancies to be filled. In April 2021, when there were 25 vacancies, the JSC took two weeks to interview 88 candidates. If the candidate list can be trimmed by making the SCA appointments now, there is no reason why the JSC should not do so.

In addition to the SCA judges, the JSC will on Tuesday, 21 May be interviewing the candidate for Deputy President of the SCA, Justice Dumisani Zondi.

The current Electoral Court chairperson, Zondi has been a judge since 2007 and at the SCA since 2014. He is fourth in the SCA’s pecking order. As President Cyril Ramaphosa’s sole nominee, section 174(3) of the Constitution requires the JSC to only advise the President on Zondi’s suitability, which advice is not binding.

The General Council of the Bar (GCB), which represents the majority of practising advocates, has asked the JSC to raise with Zondi questions on his intellectual leadership, his commitment to defending the judiciary, and his ability to administer the second-highest court in the land.

Chief Justice appointment

Speaking of the highest court in the land, later on Tuesday the JSC will interview the sole candidate for Chief Justice: Deputy Chief Justice Mandisa Maya. With current Chief Justice Raymond Zondo retiring in August after a mandatory 12-year term, Ramaphosa has nominated Maya as his successor.

Section 174 (3) of the Constitution gives the President leeway to determine how to appoint the top four positions in the judiciary (Chief Justice and Deputy Chief Justice, President and Deputy President of the SCA).

In 2022, Ramaphosa broke from tradition and took a more competitive approach of nominating four candidates for Chief Justice. This time, he has stuck to tradition and nominated only Maya. Nevertheless, the nominee still has to go through the consultative process where both the JSC and leaders of political parties in Parliament give the President non-binding advice on her suitability. The parliamentarians have already done so. The JSC will do so after the interviews on Tuesday.

Maya was previously interviewed and found suitable for appointment as Chief Justice, so that is not an issue. What the JSC needs to probe is what plans she has for leading the judiciary into the future.

Maya seems to have settled in well at the Constitutional Court, having sat in 28 hearings, penned three unanimous judgments and concurred in five majority judgments in the 18 months she’s been on the apex court. The GCB says this proves that she commands the respect of her peers and is able to obtain consensus and foster collegiality.

However, the politician Songezo Zibi has criticised Maya’s handling of the IEC v uMkhonto Wesizwe hearing, where she allowed Dali Mpofu SC to exceed his allocated time in violation of the ConCourt’s directives (and the loud buzzer).

“By not reining Mpofu in, Justice Maya participated in the denigration of an institution that is supposed to be where all of us conform to the principles and norms that make us a democratic country,” Zibi said.

Since her appointment as DCJ in 2022, Maya has led the process of writing a formal anti-sexual harassment policy for the judiciary, which is in consultation towards finalisation. As acting chairperson of the Judicial Conduct Committee, she has led efforts to speed up the process of adjudicating misconduct complaints against judges.

The explosive complaint of sexual harassment against Eastern Cape Judge Selby Mbenenge came four months into Maya’s tenure, and is about to start tribunal hearings 12 months later. Maya is also working on compiling a report on the Judicial Conduct Committee’s work, which will be a first — even though the JSC Act has required this report for well over a decade.

Serious challenges

At the relatively tender age of 60, Maya will serve as Chief Justice until 20 March 2034, just five months shy of the full term of 12 years. Significantly, Maya’s term as Chief Justice will come when the South African judiciary is facing serious challenges and rapid changes.

The top resolution of the judges’ conference in December was two demands: that the administration of the courts move from the hands of the minister of justice to the hands of judges themselves and that the magistrates’ courts and the superior courts be unified under a single judicial branch.

Both demands are complex and fraught with political tension between the judiciary and the executive. Maya will need to tell the JSC how she plans to navigate those demands and lead the largest institutional transformation of the judiciary.

While the judiciary remains strong as an institution, with capable, independent judges, there are weaknesses that should worry us. Maya will need to explain how she will work with the government to increase the number of judges to keep up with huge workloads, and how she will finally implement the technological revolution in the judiciary that’s been stalled by tender irregularities.

Naturally shy and averse to media attention, Maya will have to explain how she will speak out in defence of the judiciary and inspire public confidence.

The JSC’s sitting this week comes at a poignant moment: celebrating 30 years of democracy, an election fraught with uncertainty and a judiciary at a point of transition.

Commissioners on the JSC need to look beyond their petty self-interests and make decisions that will yield a stronger, capable and independent judiciary for the next decade — and well into the future. DM

Judges Matter will be covering the JSC interviews on www.judgesmatter.co.za, on Twitter  @WhyJudgesMatter and on LinkedIn and Facebook.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at the UCT Law Faculty that monitors judicial appointments, judicial conduct and the governance of the South African judiciary.

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