‘I am the dream and the hope of the slave.”

With these words, Ketanji Brown Jackson became the first black woman justice of the US Supreme Court.

That poem, Maya Angelou’s iconic And Still I Rise, ends:

I rise

I rise

I rise.

While history was being made, members of the Republican party walked out during the announcement of Brown Jackson’s confirmation. Their walkout could not stop the march of history. In the end, Brown Jackson’s confirmation process was relatively straightforward, with a 57:43 vote in favour.

News of Brown Jackson’s appointment resonated in a week where our own Judicial Service Commission (JSC) was interviewing candidates for positions on the Constitutional Court and in various high court divisions. In South Africa, race and gender transformation of the Bench is a constitutional imperative. As with much else in South Africa, the principles of transformation have not always been constructively or evenly applied.

Last week, the JSC completed the gruelling task of interviewing 29 candidates for judicial office.

The interviews were live-streamed by the JSC and televised. At the heart of every democracy should be the commitment to open and transparent processes, specifically where the exercise of public power is concerned. Transparency is a golden thread that runs through our Constitution and it is, for instance, why Section 59 of the Constitution calls on Parliament to conduct its business in an open manner unless exceptional circumstances warrant deliberations behind closed doors.

While the interview process stretched across the week and other important judicial positions needed to be filled, it was predictably the interviews for ConCourt vacancies that attracted the most attention.

Distasteful spectacle

The JSC has come under renewed scrutiny after the Council for the Advancement of the South African Constitution (Casac) challenged the constitutionality of the JSC’s appointment process in 2021.

This led to a rerun, yet arriving at the same conclusion. The interview process to appoint a new Chief Justice followed this year and President Cyril Ramaphosa finally made the decision to appoint Justice Raymond Zondo. The process itself was mired in controversy, and certain candidates were humiliated and gender was weaponised in all manner of ways. In all of this, Dali Mpofu SC and Julius Malema played a pivotal role in ensuring that the process descended into a distasteful spectacle.

The JSC has been largely dysfunctional for the past decade. It’s probably no coincidence that this was also the period of South Africa’s decline and the hollowing out of its institutions. This is not to say that there have not, during this time, been fine appointments to the Bench. At issue are the JSC processes and their unpredictability. Last month, several civil society organisations wrote to the JSC regarding criteria for appointments and also to ensure that a code of conduct for commissioners was in place before the interviews took place this week. 

Last week, the JSC was chaired by Chief Justice Zondo for the first time.

The council issued a media statement before its interviews detailing criteria for judicial appointment. It stated that “the 2010 guidelines first affirm the Constitution’s requirement that candidates must first and foremost be appropriately qualified and fit and proper. However, because of the vague nature of these requirements, the 2010 guidelines have “supplement criteria” which expand on the Constitution’s requirements. These supplementary criteria include issues of technical competence and energy to discharge the responsibilities of a judge, the values and integrity one needs to be a judge, and the technical experience a candidate must possess, but also the needs of the community. Finally, the supplementary criteria also ask what potential a candidate holds and the symbolism their appointment will send to the legal and wider community.

The tone, with Chief Justice Zondo presiding and with Mpofu and Griffiths Madonsela SC no longer JSC members, was certainly far more respectful and constructive. Malema, EFF leader and enfant terrible of South African politics, without his sidekick Mpofu, appeared far more muted on day one of the proceedings.

The first four interviews could be described as anodyne. The criteria, such as they are, were read to the candidates and by and large leading questions were asked in relation to these. Who would say they are not committed to the values of the Constitution and the transformation of society when asked? 

At times the questions were interspersed with jocularity, with mild attempts to probe judicial philosophy. That the questioning of candidates seemed a little “all over the place” in tone, emphasis and content can probably be attributed to the chair, Chief Justice Zondo. An avuncular man, he has an easy manner, though is lacking in the firm hand a chair should have when presiding over a body as complex and riven with agendas, both political and personal, as the JSC.

Waiting for the JSC to deliberate and recommend has always felt a little like waiting for white smoke to rise from the Sistine Chapel chimney.  Surprisingly, after Tuesday’s interviews for two ConCourt vacancies, the JSC decided to fill only one and forward only four names to Ramaphosa. This is regrettable given the need for a full complement on the apex court.

Initially, the JSC had announced it was filling two positions on the ConCourt. In terms of the rules, it would need to nominate one suitable candidate and three additional names to fill one vacancy. Given that there were only five candidates (Judge Keoagile Matojane withdrew before the interview process), it was assumed that all five names would be forwarded to Ramaphosa. But, assuming anything even with a relatively “new-look” JSC may have been presumptuous.

The Unterhalter attack

It is the interview of Judge David Unterhalter, who was excluded from the final list, that has become the source of some controversy.

Some members of the JSC, most notably attorney Mvuzo Notyesi and Malema, acted almost in concert to launch an attack on Unterhalter. Malema, who throughout the day had remained largely silent with his video camera switched off, suddenly sprang to life during the “graveyard shift” of day one of the interview process. He accused Unterhalter of bringing the judiciary into disrepute by failing to recuse himself during a ConCourt hearing. Unterhalter’s list of black junior counsel with whom he had worked was scrutinised intensely. Other white candidates, Owen Rogers and Alan Dodson, endured no such interrogation.

By the time Notyesi and Malema were done, Unterhalter’s humiliation was complete.

The animus against Unterhalter was patently obvious and has sullied the process to fill the ConCourt vacancies. Some have argued that the JSC’s decision to exclude Unterhalter may well be irrational in law. The JSC was also indicating Unterhalter’s unsuitability for the ConCourt which seems entirely contradictory given that he currently serves as an acting justice of the ConCourt. How does his position remain tenable in light of the JSC’s snub, one might ask?

It would go a long way to restoring the credibility of the JSC and assuring the public that its processes are rational if the JSC were, of its own accord, to make public its reasons for nominating only four candidates for one vacancy.

It is easy, in the immediate aftermath of last week, to mistake calls for such transparency as being “all about Unterhalter”. But really it is about trying to re-establish the credibility of the JSC by holding it to account for the power it exercises. This can only happen if its processes and reasoning are open to scrutiny and if firmer criteria are in place which can, by and large, guarantee an even-handed process which gives all candidates a fair chance. Likening apples and pears has never been productive.

Tied to politics

We are fortunate to have some measure of transparency regarding the candidates’ strengths and weaknesses. And while we often lament the politics and composition of the JSC (after all, the Speaker, who herself presides over Parliament under a cloud of corruption, and Sylvia Lucas who abused the government credit card for fast food and other purchases during her tenure as Northern Cape premier, both sit on the JSC), the process of appointing Brown Jackson in the US points to the inherent complexity of appointing judicial officers. The politics of it all can never truly be stripped away and it would be naïve to believe otherwise.  

Yet, the case of Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) is instructive.

There the SCA held: “Suffice it for present purposes to say that: (a) since the JSC is under a constitutional obligation to act rationally and transparently in deciding whether or not to recommend candidates for judicial appointment, it follows that, as a matter of general principle, it is obliged to give reasons for its decision not to do so; (b) the response that the particular candidate did not garner enough votes, does not meet that general obligation, because it amounts to no reason at all…”

The JSC has tasked the Rules Committee with reviewing the criteria for judicial appointments and recommending further expansion and supplementation of these criteria. This work is crucial and it is hoped that public comment will be elicited as the committee embarks on this exercise.

The JSC as an institution needs to entrench processes for the future which ensure that no matter who is Chief Justice, all candidates are put through a process that is transparent, thoughtful and depersonalised.

In many cases in the past, it was abundantly clear that the JSC has a favoured candidate who was then asked “sweetheart” questions. Often too the focus on law has been minimal or testing rather rudimentary elements of legal knowledge. This all has to change if the Bench is to be transformed fully and if we are to ensure that our foremost legal minds seek judicial appointment. The alternative is inexorable decline. Sadly, in certain divisions, bereft of intellectual heft, mediocrity has already become entrenched.

What we witnessed last week was not the embarrassing spectacle of past interview processes, but something improved and more dignified. Yet it was a long way from ensuring that the brightest and best will feel confident enough to throw their hats in the ring without being subjected to a capricious process. DM