It is now well known that Section 174(3) of the Constitution provides for the appointment by the President of a Chief Justice in consultation with the Judicial Service Commission (JSC) and leaders of the parties represented in the National Assembly.  

It is important to note that the system of judicial appointment through a body like the JSC is a common feature in several African and Commonwealth countries.

It has been argued, however, that members of the judiciary have individually and collectively suffered humiliation at the hands of the JSC. The other contestation that is the direct off-shoot of the formulation of Section 174(3) is that on the one hand the President should have a strong reason not to appoint the candidate recommended by the JSC, and on the other hand that the President is not obligated to heed the advice of the JSC on the appointability of Mandisa Maya as the next Chief Justice.

A similar argument arose in Botswana and was successfully defeated in court by the Law Society of Botswana (LSB), which is known for its unrelenting efforts to see reforms in judicial appointments in the country. In the case of Law Society of Botswana v The President of Botswana, the LSB approached the court on constitutional grounds to force the president to make an appointment of names recommended by Botswana’s JSC after sitting on it for a year.

According to the LSB, the constitution required the president to abide by the advice of the JSC to appoint the judges. Though the LSB lost in the High Court, the Court of Appeal vacated the decision of the High Court. The Court of Appeal acknowledged and emphasised the view that “the constitution is not a static document but is a living and organic instrument, not a lifeless museum piece; and that it must be interpreted to reflect the mores and norms of the time…” [at par:32].

Constitutions are organic, moving with the times. Interestingly, the Botswana court made a critical distinction between the constitution as law and legislation as acts of parliament: “Unlike an ordinary statute, it is not always helpful to travel back in time to people who were involved in its negotiation to try to find what its meaning within the current context would be. The Court must also have regard to any Constitutional developments which may have since taken place and what bearing, if any, such developments may have to the intentions of the founders of the Constitution.” [at par:41].

Is it not time to overhaul the process, by changing Section 174(3) of the South African Constitution? Understandably, no system for the appointment of judges is perfect. For instance, an article that critiqued the National Judicial Appointment Commission in India highlighted even flows of a system where the commission would have consisted of members of the judiciary only – the Collegium System. The following are what is considered to be the drawback of the system:

• It may be difficult to check the reasonableness of appointments made by judges themselves;
• Accountability on the part of the judiciary may be lost, hence it is important for the executive and the legislature to have some meaningful role in the appointment of judges; and
• The possible inability and incapability of the judiciary to cleanse itself of undesirable appointees. The view is that only members of the executive will have the tenacity of performing the function of knowing and informing about the antecedents of the candidates.

If it is agreed that the current process or constitutional provision regarding the appointment of judges by the JSC is antiquated, the next question is: what kind of changes can be brought to make the Section 174(3) process tolerable and free from a legitimacy crisis?

Several models exist internationally that can give us an idea of how to revamp the South African process, particularly the composition of the JSC. An example given by Chris Oxtoby of the Department of Public Law, Democratic Governance and Rights Unit at the University of Cape Town, is that the Zimbabwean JSC in terms of the country’s 2013 constitution, section 189(1), is made up of 13 members: four judges, the attorney-general, a magistrate, the chairperson of the Civil Service Commission, three lawyers, a law academic, an accountant or auditor, and a person with human resources experience.

The composition is designed to have as part of the interviewing panels the people who will make it possible to assess the criteria. Direct representation of members of parliament or the minister of justice, as in South Africa, is avoided.

As a further example, in Botswana, section 103(1) of the constitution initially provided for the establishment of a JSC, stating that it shall consist of “(a) the Chief Justice, who shall be the Chairman; (b) the Chairman of the Public Service Commission or such other member of that Commission as may for the time being be designated in that behalf by the Chairman of that Commission; (c) one other member who shall be appointed by the Chief Justice and the Chairman of the Public Service Commission acting together.”

The constitution was amended in 2002 and the new section 104 provides that the JSC shall consist of: “(a) the Chief Justice who shall be Chairman; (b) the President of the Court of Appeal (not being the Chief Justice or the most senior justice of the Court of Appeal); (c) the Attorney-General; (d) the Chairman of the Public Service Commission; (e) a member of the Law Society nominated by the Law Society; and (f) a person of integrity and experience not being a legal practitioner appointed by the President.”

Clearly, Botswana tried to steer away from the influence of executives and politicians through their direct appointment to the JSC as is the case in South Africa. From a judicial independence point of view, the new structure of the JSC in Botswana expressly included representation of the Law Society – which is an influential and critical body in the legal profession of any country – as a stakeholder. Also, it secures the government to be represented by the attorney-general, who is constitutionally designated as the principal legal adviser to the government of Botswana.

Whichever process is to be followed in the overhaul, its hallmark should be the ability to enable the appointment of an independent Chief Justice – and not fall into the trap of Africa’s practice of chief justices being appendices of the executive. 

According to a comparative study by Dingake, Hasic, Peppard and Hayden,  “in Africa, it is fair to say that while some chief justices have exhibited signs of being captives of the executive, others have shown admirable courage to defend the independence of the judiciaries. The judiciary can withstand attack if it has a strong chief justice. Conversely, in other countries, it is the chief justices who join the executive to hound independent-minded judges out of office.” [at p.430]. DM

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