Next week, between 2 and 6 October, the Judicial Service Commission (JSC) meets for the second of its two annual sittings. Several important positions are up for grabs.
Candidates will be interviewed to fill four positions on the Supreme Court of Appeal (SCA), the second-highest court in the country.
Several long-standing vacancies should be filled, including the Deputy Judge President of the Labour and Labour Appeal Courts, a position that has stood open for several years. And for the first time in almost 10 years, candidates will be interviewed to fill permanent positions on the Labour Appeal Court.
So, this round of appointments is important. JSC interviews always are, because of the key role that judges play in our constitutional democracy, and how important this makes it that the best candidates available are appointed.
The JSC has been strongly criticised for how it has gone about fulfilling this role.
It has been accused of not assessing candidates properly, of misapplying the constitutional requirement to diversify the judiciary, and of treating candidates unfairly.
With interviews taking place in the full glare of the public, this may well have had the effect of discouraging candidates from coming forward.
Another major concern (raised in Freedom Under Law’s 2022 report on the performance of the JSC) is that the JSC needed to adopt more detailed criteria; to be clear and transparent about what they were looking for in the candidates who appeared before them.
After the JSC interviews had sunk to arguably a historic low during interviews of Constitutional Court candidates in April 2021, and the Chief Justice interviews in February 2022, the commission, to its credit, finally moved to change things.
Comprehensive criteria and guidelines were released for comment at the end of 2022 and were applied for the first time in the April 2023 interviews.
This is a huge step forward for the JSC, although it remains early to say for certain whether the criteria will have the desired impact – the real tests are coming as they are applied in practice.
The April 2023 interviews showed promising signs, with the criteria seeming to have a subtle but important impact on the processes. Many incisive and rigorous questions were asked, without candidates being unfairly harangued, as has been seen in the past.
Candidates were subject to often robust, but fair scrutiny – as they should be for such important positions.
In some instances, commissioners made express reference to the criteria and articulated their understanding of the approach the commission was taking. These are all positive developments for the openness and transparency of the process.
Some issues do remain.
The April 2023 round still showed lines of questioning that were irrelevant and repetitive, and the JSC continued to struggle with timekeeping, with interviews frequently running way over the scheduled time.
The guidelines expressly empower the chair to “rigorously” enforce the requirement that questions be relevant to the criteria, and this will hopefully become more of a feature of the JSC’s practice.
This round of interviews will also present a good test of how the JSC’s new process deals with potentially contentious candidates.
Two of the candidates for the SCA, judges Kathree-Setiloane and Unterhalter, have experienced tumultuous interviews in the past when appearing as candidates for the Constitutional Court. The JSC’s failure to recommend Judge Unterhalter for appointment to the Constitutional Court has been particularly controversial, although he did not help himself with some of his responses.
It will be intriguing to observe how the JSC handles their interviews this time round, particularly as one of the criticisms levelled against Judge Unterhalter on his previous appearance was that he had not done enough to advance the cause of black and female advocates while he practised at the bar.
The JSC’s new guidelines and criteria discuss at some length how the commission understands the need for transformation of the judiciary and what it is looking for from candidates in demonstrating their commitment to transformation. How these factors play out in a real life and potentially contentious interview could be fascinating, and a good litmus test for how the new criteria will work in practice.
This does not mean the candidates in question must be given sweetheart interviews and appointed without critical engagement. It does mean that how the JSC goes about engaging with their candidacy will be a good test of the fairness of its procedures under the new guidelines, and whether they will serve to ensure a process that is both rigorous and fair.
There are other issues which will be important to watch.
The range of positions for which candidates are being interviewed, which include leadership positions, specialist and appeal courts, as well as entry-level high court positions, means that the JSC will need to apply the criteria with a close eye to the specific and sometimes differing needs of the different courts and positions involved.
In the April interviews for leadership positions, many questions (and answers) did not seem to have the depth and granularity that might have been expected, and it may be, subject to how the October interviews go, that this is an area where the JSC will need to elaborate further on the criteria.
In the wider context, there are pressing issues which may not all be under the JSC’s control, but which will need to be watched.
A vacancy on the Constitutional Court, which has stood open since October 2021, was not even advertised for this round, meaning that it would have stood open for more than two years if, optimistically, an appointment is finally made following the JSC’s next sitting in April 2024. One can only hope that the JSC will show continued improvements in the interview process to reassure judges who may have lost confidence in the process that the JSC is indeed a safe space within which to put themselves forward.
Following the April interviews, concerns were also expressed about the strength of some of the candidates. This will hopefully be shown as an outlier and not a sign of a deeper malaise. Again, the October interviews will provide an important indicator.
Finally, while it has developed a commendable set of criteria and guidelines, the JSC has yet to respond to calls (including by Freedom Under Law) to develop a code of conduct for commissioners. This is important for the JSC to do to ensure its own accountability, and it is to be hoped that it will remain on the commission’s agenda.
A “successful” round of interviews would see the JSC continuing to build on the promising signs from the April interviews and continuing to establish new practices by institutionalising the criteria and guidelines.
Much of the recent improvement in the JSC’s practice has been driven by new members of the commission, particularly among the lawyers. But it is important that the criteria form part of the development of institutional practices that will guide the JSC’s processes irrespective of the identity of individual commissioners.
The October interviews can be another important step in that direction.
As ever, it is our task to keep watch. DM