Much of the political coverage over the past week concerned the testimony given by President Cyril Ramaphosa before the Zondo Commission. But the Judicial Service Commission’s (JSC’s) legal surrender was arguably a development that was of at least equal constitutional import to that of the disconcerting, never above the level of pedestrian, performance by the president in the face of forensic examination by evidence leaders.
The JSC surrendered in the face of a review application launched by the Council for the Advancement of the South African Constitution (Casac) to set aside the proceedings of the JSC in April, which had resulted in the recommendation of five applicants for positions on the Constitutional Court. The JSC announced that it would settle in favour of Casac.
That the JSC conceded that its interviews were flawed and hence its conduct was irrational in the manner in which the interviews were conducted and its recommendations motivated is truly staggering. It means that, presumably based on independent legal advice, the JSC concluded that the Casac review would succeed. It follows that the body enjoined by the Constitution to be responsible for judicial appointments has acknowledged that during its April meeting it failed to comport itself within the confines of its legal mandate
The JSC has now accepted that the interviews for Constitutional Court vacancies have to be heard again. By whom, it is imperative to ask, will the interviews be heard? In the ordinary course, after an administrative body has been found to have been biased, an order setting aside the decision and remitting it back to the administrative body would add the rider that the body hearing the remitted matter must be constituted of fresh members. But in the case of the JSC it appears that the same people who acted irrationally, asked irrelevant questions, and failed to apply an independent mind to the crucial decisions that were made will again appear in the replay.
That is surely not the route to the restoration of the well-earned fractured reputation of the JSC.
It may be that a court would consider it a judicial overreach to order that new members must be appointed for these interviews, thereby restoring some confidence in a fair process. Manifestly, this should be done. If not, the likelihood is that the present JSC will make a pretence at responsible questioning of the candidates to test whether they have the technical legal knowledge to be members of the apex court, the requisite commitment and understanding of a transformed legal system, a record that is congruent with that claim and the temperament to be a member of an apex court. They will then doubtless revert to their earlier mode of decision-making.
It is surely possible for the political parties to change their delegates, the president to nominate four new members and the Bar and attorneys’ profession to do the same. We know that the JSC will no longer be chaired by Mogoeng CJ, whose tag team performance with Julius Malema against Judge Dhaya Pillay was a key argument in the review application. At the very least there will be a new chair. But were the rest of the current JSC to totally shock the nation and justify their resignations by accepting their share of responsibility in their impairment of the legitimacy of the JSC, a new body could then commence afresh.
That is not, however, the end of the matter. Since this self-induced debacle, two more vacancies have arisen on the Constitutional Court. Save for Judge Pillay, who understandably refused to be party to further unbridled abuse, the seven who applied in April have reapplied. Now that there are four vacancies to be filled, the JSC will of necessity have to recommend all seven to the president, in that it is required to provide the president with a list of the number of vacancies plus three additional recommendations. The interviews with only seven applicants become no more than a set piece.
There are a number of excellent judges and senior lawyers, indeed many of whom, with a couple of exceptions, are clearly superior to most of the present list. Understandably, they are reluctant to apply and then be subjected to sustained abuse masquerading as probing questions. The key to a process that befits appointment to an apex court, which many legal commentators have described at present as the weakest since its creation and hence in desperate need of some fresh jurisprudential heft, is to begin the process afresh by calling for nominations of which the present applicants will all be guaranteed an interview but seeking to attract a wider pool of judicial talent for consideration by the JSC.
The import of the JSC accepting, in effect, that it had no defence against the Casac review cannot be overestimated. It has conceded that it failed to fulfil its constitutional mandate and in a democracy, those responsible should resign in order to place constitutional duty above personal or political ego. That the JSC has soon – unless it again kicks the can holding the Hlophe case down the road – to deal with an impeachment finding by a tribunal only adds to the challenges facing this important body. DM