A resilient independent judiciary is critical to the protection and development of constitutional democracy. Hence, the appointment of judges is a matter of weighty public interest. It is for this reason that when the interim constitution was being drafted, the idea of judicial appointment by way of an independent, constitutionally enshrined body to be named the Judicial Service Commission (JSC) was first mooted.

This initiative was a response to the system of judicial appointment since the Union in 1910, in which the Minister of Justice held sway and his decision was made in a proverbial smoke-filled room.

An appointment process by way of the JSC heralded a new dawn. Public interviews of candidates for judicial appointment would be held and the JSC would be comprised of a range of commissioners drawn from the political parties represented in Parliament, judges, members of the legal profession and four presidential nominees, drawn from whomever the President so chose.

From its inception, the major problem was that the JSC struggled to strictly adhere to clear guidelines. True that in 1998 Chief Justice Ismail Mahomed published guidelines which were adopted by the JSC. The key criteria were the following:

• Is the proposed appointee appropriately qualified?
• Is he/she a fit and proper person for appointment? and
• Would his/her appointment help reflect the gender and racial composition of the country?

There were important supplementary criteria including where the person was technically competent, experienced in regard to the values and needs of the community and the capacity to give expression to the values of the Constitution.

There was also the question of symbolism — what message is given to the community at large by a particular appointment. 

An outstanding comprehensive exposition of how to implement these broad principles was written some years ago by SJ Cowen (now Justice Cowen). Sadly, it does not appear as if this document has percolated into the thinking of the JSC in that no clear and deliberate pattern of interview can be divined from the JSC record. In addition, 24 years have passed since the guidelines were compiled and what was required at the dawn of democracy is not necessarily the same today, given the strides made in the direction of greater representivity, as important as this remains.

This lack of consistency aside, for many years the JSC did, certain glaring exceptions aside, make appointments that were in keeping with the imperative of having a transformed, constitutionally committed judiciary. 

While some interviews may have been robust, generally the process was one of adherence to courtesy to the applicant and a focus on his/her record and the perspective of the interviewee. Much of this was doubtless due to the commanding presence of the then chairs of the JSC — Chief Justices Ismail Mahomed, Arthur Chaskalson, Pius Langa and Sandile Ngcobo.

Without this calibre of the leadership of the JSC, the open-ended nature of the criteria and the problem of the composition of the body have become increasingly apparent. 

Take the latest interviews as an example. There was blatant inconsistency in the manner in which the four candidates were questioned. Justice Mandisa Maya was hardly probed on any of the key issues: her jurisprudential vision, beyond the clear imperative for greater gender transformation, what could be done to make the profession and the legal system more responsive to gender, how precisely she would have reacted to the attack on the judiciary launched by Lindiwe Sisulu, how is indigenous law to be incorporated into the shaping of the legal system, how would she improve the mechanism in which judges are subject to JSC discipline.

By contrast, Justice Dunstan Mlambo was subjected to intense cross-examination of many of his judgments, apart from the allegations, without a scintilla of evidence, about sexual harassment. Justice Raymond Zondo was subjected to endless questions about his conduct of the Zondo Commission, as opposed to questions that followed the criteria.

Much has been made on social media by some of the decisions of the JSC as representing a triumph over a dominant colonial mindset. To debate competing visions for our legal system should be applauded, but that was never done over the four days. No candidate was probed on this question.

Instead, political positioning, and posturing, was the order of much of the day. And that leads to the question of the composition of the JSC. For starters, it is far too large a body to conduct searching interviews on the key questions of the development of law under the shadow of the Constitution, access to justice for millions who are unable to afford justice, justice delayed and denied, rank judicial inefficiency, to take but a few key points.

The excessive influence of politicians is an equal cause for concern. At present, the ANC, if the presidential nominees are included, holds 12 positions out of 23 commissioners. If there are to be presidential nominees, they should be drawn from civil society. The kind of person whom the president can choose should be incorporated in law. 

There is simply no reason why there should be 10 politicians in addition to the Minister of Justice. The guidelines need to be revisited and crafted so as to bound the decision of the JSC to ensure that a measure of consistency of the interview is achieved. The new criteria can be published and training in the implementation thereof must be mandatory for all commissioners.

Of course, the success of such an institution depends on the people who become members of the JSC. They are all appointed in a representative capacity. Hence, whether it be the political party they represent, the Legal Practice Council, the Bar or Advocates for Transformation, there must be a power of recall in the event that a representative embarks on a frolic of his or her own.

The sharp point is this — as presently constituted and as it now conducts its business, the JSC is not simply failing to promote a constitutionally resilient judiciary. It has become an obstacle to the achievement of the purpose for which it was initially conceived. The Constitution needs amendment and the operation of the JSC requires urgent change. DM

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