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The JSC train wreck: the commission needs an urgent and...

Defend Truth

Opinionista

The JSC train wreck has been long in the making — the commission needs an urgent and complete overhaul

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Anthony Norton is the founder and managing director of boutique regulatory law firm Nortons Inc. He is a Rhodes scholar, and has a Master’s in Law from Oxford University.

The only apparent consistency in the commission’s approach is to reject certain exceptional candidates. Why would any sensible and rational body consistently reject some of the best legal minds available for judicial appointment?

It is hard to contemplate a more unedifying and undignified spectacle than the recent interviews by the Judicial Service Commission (JSC) of the four potential nominees for appointment as the new Chief Justice of South Africa.

That the process derailed in spectacular fashion should have come as no surprise. Indeed, the train wreck of the Chief Justice interviews has been long in the making. To anyone who has followed the interviews conducted by the JSC over the last few years, this was simply a continuation of the unconstitutional and misguided approach which has, generally speaking, characterised these interviews.

The reality is that the JSC has conducted its processes and interviews with candidates without setting out any clear, objective and coherent criteria against which potential candidates for judicial office should be measured and has, for the most part, been inconsistent in its approach in interviewing candidates.

The only apparent consistency in the commission’s approach is to reject certain exceptional candidates. Why would any sensible and rational body consistently reject some of the best legal minds available for judicial appointment? The question only needs to be posed to appreciate the sheer irrationality of what has been going on behind closed doors at the JSC for far too long.

An important feature of the JSC is the fact that it is an organ of state created in terms of section 178 of the Constitution and, as a result, performs constitutional functions and duties. Consequently, the commissioners appointed to serve on the JSC are required to adhere to constitutional norms and discharge their functions in accordance with the Bill of Rights.

In this regard, three particular and foundational principles of our Constitution are particularly relevant.

Firstly, the right to dignity reflected in section 10 of the Bill of Rights, which provides that everyone has inherent dignity and the right to have their dignity respected and protected.

Secondly, the principle of fairness, which entails that everyone must be given fair notice and a proper opportunity to rebut allegations that are seriously prejudicial to their rights. 

Thirdly, the right to equality reflected in section 9 of the Bill of Rights, including the right to equality before the law.

One would have thought that given the plethora of lawyers that serve on the JSC, at least some of them would have understood that their processes needed to at least take into account these fundamental principles.

In layperson’s terms — when conducting interviews pursuant to its statutory and constitutional mandate, the JSC needs to ensure that the process it follows is procedurally fair, that it is conducted in a rational and reasonable manner and that candidates are treated with dignity and on an equal basis.

One of the requirements for such a process is that candidates should be assessed against the same fair and objective criteria and that commissioners, in conducting interviews and selecting candidates, should not only have regard to the relevant criteria but must also ensure that candidates’ dignity should be respected in the manner in which the process is conducted. These rather elementary constitutional and administrative law principles should be the touchstone against which the JSC’s processes should be judged.

Ordinarily, when candidates are interviewed for judicial office by the JSC, the practice has been that the General Council of the Bar conducts a pre-interview screening process in order to determine whether there are any particular issues of concern related to that particular candidate and provides the report to the JSC. The generally accepted practice is that if legitimate concerns arise in respect of a particular candidate, as a matter of fairness the candidate is given prior notice of the concerns and is afforded an opportunity to respond to any such concerns prior to the formal interview by the JSC taking place.

With this background in mind, the recent interviews of the candidates aspiring to be the next Chief Justice should be assessed. The fundamental shortcomings of the interview process manifested themselves most visibly in the interview of Judge President Dunstan Mlambo.

Questions along the following lines were posed to him by certain of the commissioners: “There have been allegations of sexual harassment in which you are implicated, rightly or wrongly… Where does this come from, is there any substance to this, are there any victims somewhere out there who might come out when you’re Chief Justice that would embarrass the country or is this just one of those, and I am an expert in this, where people just smear without any foundation.”

The sheer irony of the question should not be overlooked. Another commissioner posed a very similar question: “On the rumour of sexual harassment what got me worried was that it is actually happening to women who want to be acting judges so for them to get access to act, they get to be subjected to all those manner of things.

Allegations of sexual harassment and that women advocates who wish to secure acting appointments as judges are required to grant favours are clearly extremely serious allegations. However, the allegations didn’t end there.

One of the commissioners went further and addressed a question along the following lines to Judge Mlambo: “I put to you that you know that there are rumours about kickbacks and capture of your division and so on.”

How should one interpret this particular question? The term “kickbacks” suggests some form of corruption, while the word “capture” (redolent of “State Capture” — widespread and systemic corruption) has a number of potentially very negative implications. It is hard to imagine any more serious allegations than these being made to a judicial officer and it is also suggestive of the fact that the judicial process has been compromised.

Given the extremely serious nature of the allegations that were raised with Judge Mlambo, the first question is why was the usual practice not followed of giving him advance notice of the allegations that would be raised with him?

Secondly, the nature of the questions that were posed raises two very concerning alternative explanations for what transpired. Either there was a sufficient factual basis to raise the topic of the rumours (which his questioners gave no hint of and Judge Mlambo denied emphatically), in which case the JSC should have advised the candidate upfront that these issues would be raised with him and presumably afforded him an opportunity to respond and would have also immediately called for an extensive investigation to be conducted to determine the veracity of the rumours.

Alternatively, this was a deliberate attempt to undermine the candidacy of Judge Mlambo. In either case, it was incumbent on the commissioners raising these issues to place a proper factual basis before the JSC to allow the commission and Judge Mlambo to engage meaningfully with the facts as opposed to being confronted with speculative rumours and being required to deal with them in the moment.

The fact that not a scintilla of genuine evidence appears to have been raised at the hearing, which would corroborate these so-called allegations or “rumours”, seems to suggest that it is more likely that the questions were raised, absent any factual basis, with the intention of undermining Judge President Mlambo’s candidacy.

What is even more extraordinary is that questions of this type were posed without any initial intervention by the chairperson to determine whether there was a sufficient factual basis for them to be raised with the candidate to start with. It was only belatedly that the chairperson sought to intervene and rule the questions out of order. It is difficult to conceive how this line of questioning in the context in which it was raised could ever have been in keeping with the right to dignity or the principles of fairness or equal treatment.

The disgraceful nature of the JSC’s interviews in this instance was compounded by the fact that the other commissioners failed to intervene and protect the dignity of the candidates in the face of the sexual innuendo which was apparently made “in jest” to the only female candidate and the vicious nature of the questions about sexual harassment and “kickbacks” and “capture” in respect of which Judge Mlambo was not forewarned.

This article is not intended to suggest that any of the candidates for the position of Chief Justice should be the preferred candidate or that Judge Mandisa Maya would not make an excellent Chief Justice — she plainly would. However, the difficulty is that the manner in which the interviews were conducted by the commission raises serious concerns about whether the candidates were treated fairly and justly.

The organised legal profession also bears a measure of responsibility in this regard for its complete apathy and failure to publicly raise the past failings of the JSC when it has been obvious for some time that there were fundamental flaws in the manner in which it was discharging its functions.

No purpose will be served in simply trying through various degrees of legal sophistry to paper over the cracks in the manner in which the JSC is constituted and conducts itself. The truth of the matter is that a number of dominant personalities with distinct agendas have held sway over the affairs of the commission for far too long and have not been constrained either by the consistent application of objective, coherent criteria in assessing candidates or by the intervention of their colleagues on the commission who should have held them to account.

Nor have those entities or persons that appointed them taken steps to replace them as commissioners.

What is required is a complete overhaul of the JSC’s personnel and its methodology for selecting candidates. Unless the legal profession in conjunction with the president and Parliament clearly acknowledges the self-evident failings of the commission and fundamental remedial action is taken, the future of the judiciary is very bleak indeed. DM

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  • The biggest problem, in my opinion lies with the Chairperson of the commission. He/she should set out the parameters for the specific interviews to be conducted beforehand. Then make sure that all participants stay within those parameters and within the rules of the constitution.
    The next issue I have in this particular case is with the rest of the members who did absolutely nothing to stop the two morons from throwing allegations without any proof at certain of the candidates. It seems they agreed with that line of ‘questioning’ by keeping quiet?

  • In a previous comment, I pointed out as you do here, that especially those with a legal background (or without) serving on the JSC bear some responsibility for allowing the ‘domineering’ members to ask scandalous questions ! Even if it is the chairperson’s responsibility to ‘manage’ the interviews, as a member you have a right and DUTY (obligation) to ‘object’, and call to the attention of the chair, to any scurrilous question ! If you fail to take that responsibility seriously, you are complicit in the malfeasance that the JSC is embroiled in !

  • This great article seems to raise further questions! I agree with Gerrie Pretorius that the action, or seeming complete inaction of both the chairperson and the other “ commissioners” left a great deal to be desired. This process went in for days , so lack of time or opportunities to criticize the tone of the proceedings, are obviously not relevant here.Whoever appoints the personnel who make up the JSC , should be called upon to justify the selection, and the completely distasteful manner in which it carries out its important business

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