The Judicial Service Commission (JSC) interviews have come and gone. And, as predicted, there was less drama and definitely a lot less shouting. All things considered, a real sense of decorum has been restored.
What’s the adage again — all that glitters is not gold? Although these interviews are a shining refinement of the past, there is still room for improvement. After all, this is the constitutional body that appoints judges to our courts, and it should be held to the highest standard.
Let’s start with the good news first.
Some real legal debates occurred, and many new commissioners provided an excellent demonstration of how to partake in robust yet respectful questioning.
Prof Clement Marumoagae, representing the academic profession, was well prepared for each candidate and had his questions on each candidate’s judgments ready, providing an in-depth understanding of the legal matter. This was a valuable contribution, as engaging candidates on their judgments allows commissioners to discern how the candidate arrived at a conclusion and how, in general, they approach the law.
Advocates Carol Steinberg SC and Tembeka Ngcukaitobi SC traversed difficult legal questions with the candidates in a manner that tested the candidates’ abilities and, in the same breadth, showed them the necessary dignity. These significant contributions can be seen in the dialogue between Steinberg and Judge Bashier Vally regarding his application of legal precedent, as well as Ngcukaitobi and Adv Jacobus Swanepoel on his understanding of legal remedies under our Constitution.
Similarly, Adv Khameshni Pillay SC and her questioning of Judge Keoagile Matojane on the Disaster Management Act and questions posed by Adv Sesi Baloyi SC to various candidates provided valuable input in testing candidates’ abilities and understanding of the law.
It was clear from the interviews that the legal fraternity had come prepared to put the candidates through their paces. These questions and debates must be encouraged in JSC interviews as they relate to the candidate’s ability, skills and understanding of the law without concentrating solely on perceived negative aspects or characteristics of candidates.
In short, these questions allow commissioners to weigh candidates against each other based primarily on their expertise to be judges.
Now, to the bad news. There were some politically loaded questions, as per usual. However, the judges (or potential judges) mostly handled it in their stride. Commissioner Julius Malema tried to drag Judge Matojane into discussing his judgment on former president Jacob Zuma’s imprisonment — a pending case before the Supreme Court of Appeal (SCA). However, Judge Matojane refused to entertain the line of questioning while remaining decidedly good-humoured.
In addition, the exchange between Malema and Judge Sulet Potterill, interviewing for one of the vacant SCA positions, raised some concerns. Malema raised the question of whether Judge Potterill was a preferred judge for high-profile cases requiring a three-judge bench. He then asked whether she had ever written a judgment for someone in a matter of which she was not part; for both questions, she answered no.
However, this line of questioning is reminiscent of the Chief Justice interviews in February this year. During those interviews, Malema tried to insinuate that Judge President Dunstan Mlambo cannot write his own judgments and instead recruits others to do so for him.
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Now for the in-between. Transformation figures prominently in the interviews. Understandably so. Transformation is imperative to our constitutional democracy, and the Constitution requires the transformation of the bench.
However, with a candidate who has appeared before the JSC on multiple occasions, canvassing the very same issues with them is not going to be particularly illuminating and may not be the best use of limited interview time. The questions have already been asked and are recorded in the transcripts and most likely appear in the candidate’s application.
What are the takeaways from the marathon 10-day interviews?
One thing became evident during the SCA interviews — the commissioners have the power to make or break your interview. In the past, judicial interviews seemed an opportunity for political grandstanding on the part of certain commissioners where inappropriate and sometimes downright abusive lines of questioning were pursued. It is apparent from the latest interviews that the JSC intends to depart from this type of spectacle.
This time Deputy Chief Justice Mandisa Maya and Acting SCA President Xola Petse were the “team” to beat. Both justices posed challenging and tough questions surrounding the candidates’ skills as a judge — particularly judgment writing skills — an essential skill for any judge to have.
All was laid bare for the other commissioners and the public regarding the candidates’ acting stints in the SCA during vigorous questioning based on their own and other SCA justices’ professional opinions of the candidates.
Generally, this can be considered a significant improvement and should be encouraged. Questions about the necessary skills, experience and qualities that will make a good judge are the right questions to be asked to determine a candidate’s suitability for the relevant judicial position.
A further takeaway from the interviews is the vital need to address the regulation of acting judicial positions expeditiously, particularly concerning acting judges at the high court level. During the interviews, it became evident that many candidates had been acting for a prolonged time, which has distinct disadvantages for the judiciary.
Long-acting stints may impact the acting judge’s independence as they leave their respective practices to fulfil a judicial function. In addition, it was clear that some acting judges are still struggling to fulfil normal judicial functions and making mistakes that should be avoided long into their acting careers.
All in all, it was a much happier affair. Let’s hope that the JSC has turned the corner and has fully embraced the independence and integrity required of the constitutional body tasked with overseeing the judiciary.
Interviews conducted in this manner may entice candidates previously prejudiced by abusive questioning to re-apply, or new candidates who were fearful of running the undignified gauntlet may now come forward so that we will have the best selection of independent and jurisprudential minds filling our benches.
Judge Matojane put it the best, so concluding with his sentiments seems very appropriate:
“The commissioners should bear in mind that we are sitting judges and may be in court tomorrow, and I avail myself to this process and get humiliated; what are we saying to the parties who are appearing before us?…
“That has a decisive impact on the rule of law because you want litigants who appear before you to have confidence that their matters would be ably and properly adjudicated upon, but if in this platform it is insinuated that I don’t know what I’m doing, why should a losing litigant accept that he or she was unsuccessful in that matter when that litigant knows that I don’t know the law.
“It’s just a plea… commissioners should remember that we also have family members, we have children, they get to read about these things. We have litigants who will still appear before us, and they should have confidence that we will dispense justice without fear, favour and prejudice.” DM