In a lengthy session early in October, the Judicial Service Commission (JSC) interviewed candidates for 22 vacancies on various superior courts.
Vacancies on the Supreme Court of Appeal and the Deputy Judge President (DJP) position at the labour court and Eastern Cape Division of the High Court attracted particular attention.
In our preview of the interviews, we noted the impact of the settlement of the Freedom Under Law (FUL) litigation against the JSC. In the wake of this settlement, the JSC published revised procedures to deal with how it interviews and recommends candidates for appointment. The JSC was required to take a decision about these criteria following the interviews.
In essence, FUL’s legal challenge was prompted by shortcomings in the JSC’s processes and attempted to ensure that changes to the JSC’s process were put in place to ensure a fair, rational process of evaluating candidates and recommending appointments.
A long way to go
Unfortunately, the October 2026 interviews illustrated that the JSC still has far to go in ensuring that its processes pass muster. It does not help that even the process of soliciting public comment on the JSC’s updated criteria – a condition of the settlement of FUL’s litigation – has been undertaken in a confusing manner.
In August, the JSC sought public comment on revised procedures for shortlisting, interviewing and recommending candidates for judicial appointment. Before the interviews had concluded, it then released a further call for comment on a combined document of the procedures, along with the substantive appointment criteria it had adopted in 2023. And yet, as we will describe, it ostensibly applied the 2026 procedures during these interviews. Such confused and convoluted processes make it unsurprising that the JSC continues to encounter problems in how it operates.
Key positions unfilled
Two of the key positions highlighted above were not filled. That the labour court DJP position was left open was not a great surprise, as neither of the two candidates had particularly impressive interviews. The outcome, however, means that a leadership vacuum continues to exist at a time when not only the court, but South Africa’s labour market generally, is experiencing significant challenges.
The DJP position of the Eastern Cape Division of the High Court was also left unfilled, despite four candidates being interviewed. This position has a chequered recent history, with the JSC having cancelled a previous round of interviews due to unspecified shortlisting issues, and then cancelling and restarting interviews in April 2026 after having “learnt of a possible conflict of interest”. (No candidate was recommended for appointment).
Four candidates were interviewed in the October 2026 round, but any hopes that this round would run more smoothly were dashed when, at the end of the day’s proceedings, the JSC advised that the results would be announced “when they are ready”.
Two days later, a statement announced that none of the candidates had achieved a majority of votes, and that it would again deliberate and vote before the end of the sitting. In doing so, the JSC appeared to be applying a procedure from the document on which it was still seeking public comment – its statement quoted directly and at length from the 2026 procedures.
And yet, following the further deliberations, the JSC announced that no candidate would be recommended for appointment. The ongoing leadership vacuum at the Eastern Cape Division of the High Court, and the head-scratching process followed by the JSC, are both cause for deep concern.
Some of the lines of questioning during this round of interviews have also come under scrutiny.
Inconsistency
The interview of attorney Elzanne Jonker, one of the candidates for the Western Cape Division of the High Court, raised concern about the consistency of treatment of candidates. As an attorney, Ms Jonker has acted regularly for the Democratic Alliance. In her previous interview in April 2026, questions were raised about how this could impact on perceptions of her independence.
These questions were raised again in her October interview, and she was specifically asked whether there should be a “cooling-off” period before she accepted permanent appointment.
This line of questioning resulted in debate between JSC commissioners during the interview. One commissioner raised a concern that Ms Jonker was being treated differently to a previous candidate, whose professional background could also raise questions about perceived independence. The Chief Justice “noted” the concern, and the interview simply continued despite the inconsistencies pointed out.
The other candidate in question, advocate Mikateko Joyce Maluleke, had been interviewed for a position on the land court the previous day. According to the information which emerged during her interview, Ms Maluleke had worked as a director-general in a government department and resigned a few days before she began acting as a judge.
She was asked a question about guarantees of impartiality if she were appointed, and a possible cooling-off period was in fact faintly mentioned. Ms Maluleke did not specifically address the cooling-off issue. She was asked three further questions relating to her prior employment with government, with no follow-up on the cooling-off issue.
Ms Jonker was asked six distinct questions (several of which included follow-ups) about perceptions of her independence, although only one commissioner expressly raised the question of a cooling-off period. Ms Maluleke was ultimately recommended for appointment. Ms Jonker was not.
Questionable approach
The JSC has an inconsistent approach to this issue. In 2016, then-advocate GM Malindi was grilled on his ANC background, with the question of a cooling-off period being raised and was not recommended for appointment. In 2021, he sailed through a far more convivial interview and was appointed.
In this round, it was also striking that two candidates for the Gauteng Division of the High Court – advocate Lukhaimane and Judge Mfenyana, both of whom were recommended for appointment – had previously worked for the National Intelligence Agency (NIA). Based on their interviews, it appears that Ms Lukhaimane had worked for the NIA between 2005 and 2012, during which time she had chaired the Intelligence Services Council. Judge Mfenyana had worked as a legal investigator at the NIA for five years, with a further two years at the Office of Inspector General.
Beyond eliciting the information about their previous employment with the NIA, neither candidate was asked any questions about whether this background might have any impact on perceptions of their independence.
While Judge Mfenyana had been interviewed in 2023, Ms Lukhaimane was appearing before the JSC for the first time. It is not clear why acting as the legal representative for a political party (without holding membership of that party) should be deemed worthy of greater scrutiny than previous employment in the intelligence services – particularly considering the chequered recent history of South Africa’s intelligence services.
Lack of leadership
To be clear, there is no basis to suggest that either candidate acted in any way improperly while employed at the NIA. The issue is that the lack of scrutiny of this aspect of their track record is difficult to reconcile with the JSC’s treatment of Ms Jonker. If there was any doubt on this point, a JSC commissioner has subsequently penned an op-ed raising concerns about the JSC’s differential treatment of the issue of political affiliation in the interviews of advocate Maluleke and Ms Jonker.
Questions of judicial independence and how the judiciary is perceived by the wider public will always present challenges. The issue is not whether candidates should be questioned about political affiliations, but rather what conclusion follows from it, and the consistency and fairness of such questioning. How these issues played out in this round suggests the JSC needs to give much more careful thought to how it deals with the issue.
This, in turn, provides a good illustration of why the application of clear criteria is so important. It also shows the importance of leadership in chairing the commission. Regrettably, the Chief Justice’s comment that concerns about the line of questioning faced by Ms Jonker were “noted”, does not suffice in dealing with the issue. It is worrisome that the Chief Justice showed no further leadership in ensuring that the JSC, which she heads, in fact ensures proper and consistent interview processes.
Consistent and equitable practice
It is noticeable that in the consolidated criteria and procedures the JSC has released for comment, there are general provisions dealing with the criterion of independence, and provision is made for candidates to be questioned on “close political affiliation or loyalty” to a society or organisation. But there is no mention of any cooling-off requirement. The JSC will hopefully give due consideration to how this issue arose during the October sitting when it finalises this document.
The outcome of the process of comment on the JSC’s criteria and procedures is evidently very significant. But the equally important question is how the JSC can ensure that these criteria are followed after adoption.
The substantive criteria adopted in 2023 are impressive in many respects. And yet, less than a year after their adoption, the JSC’s mishandling of interviews prompted FUL’s litigation. The JSC often appears to forget that its role as a public body requires that its processes are fair and defensible to the citizenry. It is, after all, not a private club.
Until the JSC can translate aspirations on paper into consistent and equitable practice, it will continue to be on the receiving end of fierce scrutiny and concerns over how it fulfils its constitutional mandate. And rightly so. DM
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