Any constitutional system that grants the judiciary the authority to strike down laws and government decisions as “unconstitutional” needs to establish a fair mechanism to appoint judges and to hold them accountable.
This mechanism must comply strictly with its lawful mandate, and display at all times a fine sense of balance and mutual respect, both for the executive and legislature and for the public, whom it must serve.
As far as possible, it must try to remove judicial appointments and accountability from party politics.
South Africa faced a momentous shift in its public governance in 1993 when the negotiators adopted a constitution that embodied the best and most nuanced democratic governance model of the late 20th century. Informed by the practice of post-colonial constitutions, the vehicle chosen to select and discipline judges was a Judicial Service Commission (JSC).
Like all governmental bodies, the JSC must promote “… a multiparty system of democratic government, to ensure accountability, responsiveness and openness” (section 1(d), one of the cardinal values which underpin the entire 1996 Constitution).
In the spirit of innovation, compromise and hope which characterised the negotiating process, the proposed membership of the JSC sought to go far beyond the more traditional model of a small and high-profile group. So the JSC aims to give a voice to all three branches of government, the legal profession, as well as the general public. As a result, it is large (23 core members), although for non-appointment matters it sits without the 10 MPs, so is reduced to 13.
How has this structure worked out in practice? In summary: patchily at best, disastrously at worst. And currently in freefall.
In briefest form, here’s the justification for the above response, focusing first on judicial appointments.
Despite some moments of controversy from 1994 to 2009, most would agree that the JSC did at least a reasonable job in appointing judges. In particular, it vigorously pursued the demographic transformation of the judiciary: by 2013 more than 60% of our judges were black and more than 30% were women.
An important contributor to this entirely justifiable “re-composition” of the Bench was the widening of the pool from which judges were appointed, to include attorneys, law academics and magistrates.
What accounts for the relative success of the JSC as a selector of judicial talent in those years? I would argue that three factors were overwhelmingly responsible: first and foremost, the role as chair of the chief justice who exercised a clear and firm hand in the open interview processes and ruled out of order unacceptably intrusive and inappropriate questions and remarks from JSC members.
Second, the generally careful exercise of their role by political parties in Parliament in designating MPs as members of the JSC, so that those appointed had a good understanding of the acceptable limits of their own authority.
Third, the four presidential appointees (effectively representing the broader public) provided a nuanced and diverse understanding of the judicial role and a consistent backbone to the JSC.
The political ground moved markedly with the accession to power of President Jacob Zuma in mid-2009. He immediately replaced the four presidential appointees without notice to them. Together with a new group of MPs and widening divisions in the organised legal profession, the JSC moved to a much more confrontational and uneven approach in the questioning of candidates during their interviews.
This triggered considerable public controversy, as well as successful challenges to the JSC in the courts, which undermined judicial authority, and raised the political stakes around judicial appointments to unprecedented levels.
However, from 2014, the appointments process generated less turbulence until the relatively calm order was dramatically breached in 2020/21.
Some JSC members have pursued clear party-political agendas which have negatively affected the tone and character of the interview sessions, and gone way beyond the limits of civility. The chief justice as chair has failed to curtail this tendency; the most recent appointments session of April 2021 was a debacle, and has generated a legal challenge.
In sum, then, I would argue that the JSC is in serious danger of failing to attract and select good lawyers for appointment to the Bench: many good potential candidates will not want to be bullied and disrespected in the manner witnessed in recent interviews.
What about judicial discipline, holding judges accountable to the high standards of integrity, hard work, impartiality and the unswerving commitment to justice, expected of them at all times? Any hint of dishonesty, bias or misconduct erodes public confidence in and threatens the legitimacy of the courts, on which our constitutional democracy depends. Ensuring efficient and fair judicial discipline is at least as important a function of the JSC as making fair and open judicial appointments.
However, a nuanced balance between judicial accountability and independence must be struck by the JSC.
How has the disciplinary structure introduced in 2010 worked in practice? In a word, dismally. Two matters have generated a great deal of heated controversy.
First, the notorious case of Judge Nkola Motata who was found guilty of driving under the influence of alcohol. The judge had put up a false defence, and this led to the finding, after an inexcusable delay of about eight years, that he had committed gross misconduct. The JSC refrained from recommending his impeachment by Parliament, instead fining him a substantial amount, but allowing him to continue to draw a judicial salary for the rest of his life in retirement. This decision of the JSC is being challenged on review, as an “irrational” exercise of its authority.
But far and away the most serious set of allegations against a judge has been directed at a series of acts of alleged misconduct by Judge President John Hlophe of the Western Cape High Court.
Over the past 15 years, Judge Hlophe has been accused of three very significant infractions of proper judicial conduct and the law. There is no space to recount even the bare outlines here, but the incidents date from 2005 and continue to this day.
The most significant stems from the complaint laid against him by all the Constitutional Court justices of effectively subverting the course of justice in May 2008. After 13 years of delays and prevarications, a Judicial Conduct Tribunal in April 2021 found unanimously that Hlophe was guilty of gross misconduct. The JSC convened weeks later and inexplicably failed to reach a decision on what further action to take, nor to recommend Hlophe’s suspension from office, with damaging consequences for the work of the Western Cape High Court.
So the disciplinary aspect of the JSC’s constitutional mandate is at best an indecisive and derisory mess, at worst a tragic dereliction of duty, which strikes at the heart of the credibility of the superior courts. If this is added to its patchy record on appointments, does this not cry out for a review of the model, and some changes?
Despite all these shortcomings, I remain convinced that the broad JSC model is the best alternative. The following steps may incrementally assist in producing a more effective and constitutionally compliant JSC:
- Mandatory training about the role expected of members of the JSC must be standard practice before the assumption of office;
- Introducing an explicit power of recall by their constituencies of errant and recalcitrant members of the JSC;
- Increasing the diversity of its membership through appointing the presidential nominees from civil society;
- Reducing the number of MPs to four for the National Assembly and two for the National Council of Provinces, with at least one from each house being drawn collectively from opposition parties (the interim JSC had 10 lawyers among 16 members);
- Increasing the number of judges by two, to include a further justice from each of the Constitutional Court and Supreme Court of Appeal, elected by the full complement of justices in each court;
- Radically rethinking the disciplinary process, to reduce interminable delays;
- Insisting on rigorous compliance with its statutory obligation to report to Parliament, which it has signally failed to do, to provide Parliament the annual opportunity to review JSC activities through the chief justice as chair; and
- Seeking every opportunity to ensure that a culture of respect, tolerance and non-partisanship becomes established in every aspect of the operations of the JSC: the role of the chief justice as chair is critical here.
There are additional ways of addressing the problems, short of abandoning what has been built over the past 27 years. While no rules and laws can prevent manipulation by a cynical, well-resourced and irresponsible person resorting to rank populism, we need to ensure that the space for such self-serving and destructive conduct is minimised.
As citizens of this country, we should demand no less of our political representatives. The stakes are much too high to fail to do so. DM