The Judicial Service Commission (JSC) is currently sitting to interview more than 40 candidates for 22 vacancies on various superior courts, including three vacancies on the Supreme Court of Appeal (SCA), and vacancies for the deputy judge president’s position at the Labour Court and the Eastern Cape Division of the High Court.
That this week’s sitting started several hours late, with scant explanation, is problematic, and the general public perhaps watching online could easily draw an unfavourable conclusion from this delay.
These interviews take place against the backdrop of last month’s settlement of Freedom Under Law’s litigation against the JSC. Freedom Under Law’s legal challenge, prompted by the JSC’s especially problematic handling of interviews of candidates for the SCA in October 2023, sought to compel the JSC to develop and publish criteria to assess candidates by applying objective criteria, and to require commissioners to record written evaluations of candidates’ compliance with those criteria. The settlement has been made an order of court.
The JSC has published revised procedures dealing, inter alia, with how it interviews and recommends candidates for appointment. In terms of the settlement agreement, the JSC must make a decision on these guidelines (which were made available for public comment) at its October sitting, and announce this decision within a week of the sitting.
It is of course unfortunate that it took a legal challenge to the JSC (not for the first time) to ensure greater rigour and uniformity in the appointments process. Considering the many controversies related to the way the JSC has conducted interviews, one might have expected that the JSC would, of its own accord, seek to protect the integrity of its processes, fully understanding the impact a failure of uniform process has on the quality of the Bench.
Crucial
The demand for more stringent, properly applied appointment criteria is important to contextualise. It is not a purity test, or an abstract intellectual exercise. Rather, it is crucial for ensuring that the JSC avoids weak or uneven appointments processes, which serve to undermine the depth of the Bench and therefore the rule of law.
Much has been made of the new leadership of the judiciary. The appointment of Chief Justice Mandisa Maya was celebrated for marking the first appointment of a woman as head of the South African judiciary. The head of the Supreme Court of Appeal (SCA), Justice Mahube Molemela’s appointment was also hailed for the “gender first” that it is.
While we should of course celebrate gender equality in the leadership of a profession that suffers from notorious patriarchy, this progress will only really matter if the women currently at the helm leave the judiciary a stronger institution and set the tenor for excellence at every level.
The role of judicial leadership, and in particular of a chief justice, is to set an intellectual example through writing judgments that shape the law, guiding fellow judges as well as ensuring that the judicial appointment process delivers judges who are capable of significant contributions to our jurisprudence.
Excellence begets excellence.
Courts under severe strain
Another incontrovertible fact is that our courts are under severe strain. Experienced lawyers, or others with close insight into the functioning of the justice system – including judges themselves – are mostly agreed on the severity of the pressures the courts face.
Some are beyond the immediate control of the judiciary but have a fundamental impact on judges’ ability to do their jobs effectively – such as a lack of capacity (it seems clear that we simply do not have enough judges to deal with the ever-increasing caseload flowing into the courts) and under-resourcing (judges frequently have to provide their own resources, such as law reports).
But there are other challenges that are self-inflicted, and it is here where the process of appointing judges should not be allowed to escape scrutiny. Are the best possible candidates putting themselves forward in sufficient numbers, or are concerns about the JSC’s processes acting as a deterrent – whether it be the inconsistency of questioning during the interview process or a focus on questions often unrelated to whether a candidate has the specific skill or legal ability, and rather more general or irrelevant lines of questioning?
A brief example of such inconsistency was seen in the current sitting for instance where Justice Mmathebe Phatshoane, Deputy Judge President of the Northern Cape High Court, “had a comparatively short interview, emphasising work in being a role model for young women”.
Consistent JSC processes would increase the chances of excellent candidates making themselves available. It is so that the best candidates are often discouraged by the way the process is conducted.
Jurisprudential consequences
Weak appointments have jurisprudential consequences. One of the major concerns that lawyers articulate frequently is the increasing inconsistency and lack of clarity in the jurisprudence being developed by the courts – including inconsistency with previous decisions that lawyers would normally rely on as creating binding precedent. This issue is particularly acute for the appellate courts that sit at the top of the judicial hierarchy, namely the Constitutional Court and the SCA.
Again, this is not an esoteric concern. If the courts’ decisions are seen as too unpredictable, and cannot be trusted, this can have a direct impact on public confidence in the courts – including business confidence and foreign investment. It also affects the rule of law, a key constitutional principle that requires, amongst other things, that the law should be clear and predictable.
One example of this concern is the development of jurisprudence as to the circumstances when a party bringing an application for judicial review is entitled to the record of the decision they are challenging.
This process is a significant component of the caseload of the superior courts. Administrative decisions are often challenged on a range of grounds, and the consequences for the party challenging them will usually be highly significant.
The legal position had long been that the record of the decision being challenged had to be produced automatically once review proceedings were instituted. It was not necessary to establish the merits of the case, or to show compliance with procedural requirements.
But a series of Constitutional Court decisions have altered the position, such that an applicant must now establish that the reviewing court has jurisdiction before the record must be produced. This means establishing that there is a legal basis and a sufficient factual basis to show that the impugned decision is reviewable.
This process has involved the Constitutional Court departing from the position previously set out in its own judgments – and produced anomalous situations where judges have concurred in decisions that set out different legal standards.
Open and accountable government
This may well seem thoroughly abstract and technical, but there is a highly practical and important aspect to these procedures. The disclosure of material underlying exercises of public power that are subject to judicial review is crucial to ensuring open and accountable government. It helps to ensure proper access to justice, and an equality of arms between litigants.
Making access to the record of decisions more difficult creates a risk of delays and increased costs in litigation, which can result in diminished accountability, as well as uncertainty for litigants.
There are doubtless several contributing factors to the concerns about the jurisprudence being developed by our courts. But the appointments process must be a leading consideration. The SCA, for example, has lost a vast number of experienced judges over recent years.
The Constitutional Court has been short of its full complement of permanent judges for most of the past decade – surely an untenable situation? And as Freedom Under Law’s litigation illustrates, the JSC has not always acted as one would expect in order to address these challenges.
In the October 2023 interviews that prompted Freedom Under Law’s court challenge, for example, the JSC only filled two of the four vacancies under consideration, overlooking several candidates who were eminently suitable for appointment (and, indeed, have subsequently been appointed).
These shortcomings in the appointment process contribute to another major ongoing concern related to the functioning of the judiciary, namely delays in delivering judgments. As Freedom Under Law’s recent research report indicated, this issue has reached crisis proportions even at the Constitutional Court, which is being overwhelmed by applications for leave to appeal. This is a multifaceted problem, but the failure to make appointments, and the expertise of judges who are appointed, is surely a significant contributing factor.
Against this backdrop, it is surprising, to say the least, that the latest vacancy on the Constitutional Court (which opened up following the retirement of Justice Zukisa Tshiqi in May) was not advertised for this sitting. This illustrates that responsibility for addressing these issues does not rest with the JSC alone, but requires the leadership of the judiciary to be proactive in their succession planning, thus ensuring that vacancies are filled promptly.
The leadership of the judiciary, together with the JSC, must make work of attracting the best possible candidates to the Bench. And those candidates, when they do indeed present themselves, must be evaluated through a process that is fair, transparent, and does not allow for the improper questioning and ambushes that have too often characterised JSC interviews in the past.
The outcome of the JSC’s consideration of its revised guidelines and procedures for evaluating candidates, and the interview framework that emerges, will therefore be as important for the future of the judiciary as the interviews themselves.
Crucial test for JSC
So this month’s interviews provide a crucial test for the JSC. It must not only decide how its processes for evaluating candidates will be conducted, it must also show that it can apply rigorous and fair evaluations in the interviews, and recommend jurisprudentially solid candidates for appointment.
This is necessary to strengthen the confidence of prospective excellent candidates, as well as the wider public, in the appointments process. Without a strengthened appointments process, the risk of unpredictable and uncertain jurisprudence will remain acute – with damaging consequences for public confidence in the judiciary and the rule of law itself.
Our country simply cannot afford a weakened judiciary incapable of acting as a restraint on the exercise of public and private power, and therefore incapable of protecting and defending the rights enshrined in our Constitution. DM
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