MIA SWART: A crucial oversight — the iniquities of the JSC

The deliberations of the Judicial Service Commission (JSC) are secret. What would a fly on that wall have observed during the interviews for judicial selection last week? Would it have seen political manoeuvring? And what chance did rational, clear-headed commissioners have to persuade political operators such as Julius Malema? 

The secrecy of the deliberations means the public streaming of the interviews has limited value, since the bit that gets broadcast tells only a small part of the overall story. Maybe one day a JSC commissioner will write a tell-all in the style of Closed Chambers, a controversial book by former US Supreme Court Clerk Edward Lazarus that exposed the internal deliberations of that body. 

The question of what happens behind closed doors at the JSC has never been as intriguing as in the context of judge David Unterhalter’s four attempts to be elevated to the higher courts. The JSCs decision to exclude Unterhalter yet again has ripple effects. Generations of law students and lawyers will now be deprived of judgments that would undoubtedly have been highly quotable and inspirational.

One of the reasons the groundbreaking Makwanyane judgment on the constitutionality of the death penalty has become iconic is the eloquence and insight of former chief justice Arthur Chaskalson. The judgments of justices Cameron, Moseneke, Sachs and Khampepe have been equally inspiring. These judges, among others, gave life to the law through their beautiful use of language. 

The discretion of the JSC is not unfettered. Shortly after the interviews the Council for the Advancement of the SA Constitution (Casac) wrote to the JSC pointing out that the result of recommending two judges for appointment to the Supreme Court of Appeal (SCA) instead of four is to leave the SCA underresourced and reliant on the appointment of acting judges. 

It asked the JSC to state whether its decision was “rationally related to any legitimate purpose”. This is a legal basis on which a court may set aside a decision of the JSC, so the letter could be seen as a precursor to litigation.

Casac has previously challenged the JSC. In 2021 it successfully sought an order to declare its shortlisting of five candidates invalid, which led to a fresh run of interviews.    

It is well-known that Jewish lawyers have made an immeasurable contribution to our struggle for democracy. Lawyers such as Arthur Chaskalson, Sydney Kentridge, Albie Sachs, Isie Maisels, Richard Goldstone, Joel Joffe and Dennis Davis are but a few examples.

If the courts and specifically the Constitutional Court should “look like SA” it will do well to continue to include Jewish lawyers as a celebration of our diversity. Nelson Mandela realised this when he appointed Chaskalson as the first chief justice post-1994. 

Moreover, it would have been highly appropriate and elegant to recommend a judge whose experience stretches from the first judgment of the Constitutional Court, the certification judgment, all the way to the decision on the constitutional obligations of Eskom.

In previous rounds of interviews the commissioners focused more on Unterhalter’s brief membership of the Jewish Board of Deputies than on his years chairing the appellate body of the World Trade Organisation, a position in which he had to adjudicate trade disputes.

This reflects a disappointing insularity on the part of the JSC. His appointment would have increased the chances of foreign and international law being integrated in SA cases.

Whereas personality always matters, reasonable people can differ about what makes someone likeable. It can also be asked whether personality can be tested in the highly artificial environment of a judicial job interview.

It is difficult to see how law students can be motivated to excel if merit repeatedly gives way to politics in this way. It places a further ceiling on the aspirations of those who do not fit the mould of the current political elite.

Judicial appointments are supposed to transcend that which is temporary and contingent. If commissioners struggle to identify with a candidate on a personal and cultural level and struggle to find emotional rapport with him or her, they seem not to care about the breadth, scope, depth and uniqueness of that candidate’s contributions.

In an age of lawfare and state capture it is perhaps naive to expect the heavily political JSC to appoint independent-minded judges who are confident in their independence and will not pander to the interests, egos and predilections of the powerful and politically ambitious.

With last week’s batch of interviews the commission has gone full circle in taking us back to the executive-mindedness of the past. 

• Swart is a visiting professor at Wits Law School specialising in human rights, international relations and international law.