LAWSON NAIDOO AND DAN MAFORA: Top court vacancy shows JSC must reform to attract officials

As the Judicial Service Commission (JSC) convenes its first biannual session of interviews of candidates for appointment to the superior courts on Monday, it will not interview any candidates for a vacancy in the Constitutional Court created by the departure of justice Sisi Khampepe in late 2021.  

In April 2022 the JSC interviewed five candidates for two vacancies, but only recommended four candidates. In terms of section 174(4)(a) of the constitution the JSC must recommend three more candidates than the number of vacancies on the Constitutional Court. Because it recommended only four candidates, the president could only fill one vacancy. That vacancy was filled by justice Owen Rogers of the Western Cape High Court. No candidates were interviewed for the outstanding Constitutional Court vacancy in October 2022 because the JSC failed to attract and shortlist the requisite minimum of four candidates. 

For this round of interviews the JSC has once again failed to shortlist four candidates for the Constitutional Court vacancy. This will come as no surprise to anyone who has been following the JSC process for at least the past decade.

The commission’s treatment of candidates has adversely affected its ability to attract quality candidates for judicial appointment. This is even more so at the level of the highest court, arguably the most prestigious legal job in the country. The tendency of JSC commissioners to use interviews as a platform to relitigate their personal or political party losses with judges who put themselves up for promotion to the apex court, to score cheap political points, or to humiliate and embarrass candidates, makes interviewing for the job of a Constitutional Court judge uniquely and perversely unattractive. 

Unilaterally prepared

Some of the JSC’s more egregious transgressions took place in the past two years, during the April 2021 interviews and the February 2022 interviews for the position of chief justice. The Council for the Advancement of the SA Constitution (Casac) successfully challenged the April 2021 interviews and had them reviewed and set aside for gross irregularity and irrationality.

It emerged from the record of deliberations of the JSC filed in the application that no deliberation by the commissioners over who should be appointed took place, but that the resultant recommendation came from a list unilaterally prepared by former chief justice Mogoeng Mogoeng that was simply rubber-stamped by the JSC.

This was in addition to the deplorable treatment the candidates were subjected to in full view of the public. The JSC had been exposed for not having applied its mind to the task at hand, one that it is constitutionally mandated to exercise. 

However, the wheels came off in the chief justice interviews of February 2022. After President Cyril Ramaphosa has constituted an independent panel to advise him on possible candidates for appointment, he sought the views of the JSC on four candidates: deputy chief justice Raymond Zondo, Supreme Court of Appeal president Mandisa Maya, justice Mbuyiseli Madlanga and judge-president Dunstan Mlambo.

Maya was subjected to humiliating sexist questioning, Mlambo was ambushed with unfounded allegations of sexual harassment, and Zondo was subjected to unwarranted political mudslinging over his role as chair of the state capture commission of inquiry. In the aftermath, the professional legal bodies and the president took steps to replace some of their representatives on the JSC who had behaved abominably during those interviews. 

Publishing criteria

A sense of decorum and decency has since been restored and was especially felt in the October 2022 round of interviews, chaired by deputy chief justice Maya. But that is not enough. Having recognised its previous shortcomings the JSC must now take bold steps to institutionalise this new approach.

The JSC is still viewed by many in the legal profession as the place where one goes to be publicly humiliated and to have one’s dignity, credibility and respect impugned. The asking of irrelevant, highly political and prejudicial questions to candidates, the ambushing of candidates with spurious allegations, and the poor chairing of the interviews, all remain deeply problematic aspects of the process. 

For the JSC to attract suitable candidates for appointment, and the best ones at that, it will have to drastically change its ways. Two encouraging developments in this regard are the publishing of criteria to guide the questioning of candidates, and the development of a code of conduct for commissioners. Once finalised they will enable more effective monitoring of the JSC’s performance and greater accountability. Potential candidates will know what to expect and can prepare appropriately, making them more likely to come forward. 

The failure to shortlist candidates for the Constitutional Court vacancy threatens the stability of the court, which has not had a full complement of 11 judges for an extended period, with various acting appointments having been made throughout Mogoeng’s tenure as chief justice.

In addition, Zondo’s 12-year term as chief justice comes to an end in September 2024, and justice Mbuyiseli Madlanga’s the year thereafter. These vacancies will occur in quick succession, and the JSC’s failure to attract and shortlist candidates for this current vacancy poses the risk that it will be unable to fill it in time and that the number of vacancies will grow even as the number of candidates willing to put themselves forward does not. 

Staffing the apex court with judges of the highest quality is of utmost importance for maintaining respect for the judiciary as a whole and the rule of law, as well as the sound administration of justice. The nomination and appointment of people to judicial office is also the JSC’s primary responsibility. If it continues to conduct itself in the manner it has in the past, it will continue to fail to discharge that singular constitutional duty.

The JSC must rededicate itself to examining candidates for their competence as jurists and commitment to upholding the constitution. It must abandon playing politics with so delicate an institution. We will be watching closely. 

• Naidoo is Casac executive secretary and Mafora its senior researcher.