EDITORIAL: Judicial watchdog improves, but can still do better

Last week, the Judicial Service Commission (JSC) came out snarling and yet purring, as it both criticised and assured candidates for the bench. On the one hand, nearly every candidate was thoroughly grilled. On the other, chief justice Raymond Zondo began his sessions assuring candidates that while the JSC would be “robust”, candidates’ dignity would be paramount. 

This is a far cry from the flood of toxicity that has drowned JSC hearings before, which were replete with “grandstanding, long-winded introductory remarks to questions, [very long] interviews ... ad hominem attacks, hostility and disrespect towards particularly black female candidates”, as Judges Matter put it.

During last year’s hearings for the chief justice position Gauteng judge president Dunstan Mlambo was ambushed with questions of alleged sexual harassment, there were ponderings whether SA was “ready” for a female chief justice with current deputy chief justice Mandisa Maya and political grandstanding against then candidate Zondo for his role in the state capture inquiry.

There had long been calls for the JSC to be radically reformed, by adopting proper criteria to be guided by in its deliberations. As Stellenbosch law lecturer Tanveer Jeewa noted in 2022, as a result of not having such criteria, commissioners could “ask questions that are completely unrelated to the applicant’s fitness and eligibility for the appointment”.

This year, however, the JSC noted it had adopted criteria, thus reining in irrelevant questions. Indeed, in the whole week very few questions were unrelated to the candidates’ judicial and practical abilities. The JSC and its chairpersons — Zondo for most days, followed by Maya — are to be commended for this vast improvement. Almost every commissioner kept questions short and often only to two, pointedly interrogating aspects of candidates’ legal knowledge, explanations concerning some blotch on their CVs — such as unpaid taxes or interdicts against practising — and to respond to concerns raised by legal bodies. 

For example, the acting president of the Supreme Court of Appeal (SCA), Xola Petse, questioned candidates’ knowledge about the way courts determine negligence and on what grounds appellate divisions could interfere with lower courts’ decisions. Almost every candidate struggled — even those who were clearly watching the live streams and tried to prepare. 

Wits law professor Clement Marumoagae demonstrated his vast reading of every candidate’s application form and written judgments, either interrogating a nuanced area of law — such as sequestrations — or an aspect of practicality, such as the fact that the SCA is still not fully using electronic platforms. This means, as he noted in his engagement with SCA presidential candidate Mahube Molemela, a high court division is more up to date than the second most powerful court in the country.

Molemela, who got the JSC nod for the country’s third highest judicial position, agreed and outlined how she would be attending to this. This is exactly the kind of question — and answer — we want from candidates, especially those being elevated to a leadership position.

Commissioners from the legal profession, Kameshni Pillay, Sesi Baloyi and Tembeka Ngcukaitobi, did an outstanding job of interrogating candidates’ abilities and often terrible judgments. Unafraid to mince words, these lawyers explained to candidates why their judgments were poorly reasoned, badly written or made no sense.

A commissioner’s duty, after all, is to make sure any judge who is appointed has the requisite abilities to make proper rulings. Court orders affect people’s lives, sometimes in dramatic ways, and judgments are owed to the public at large to explain the court’s reasoning. This robustness from these lawyers was therefore warranted and when done correctly is precisely what we want out of a JSC.  

However, the body still has work to do.

Questions to female candidates were asked that were never asked of male candidates, such as whether they are too “abrasive” and about balancing being a judge and being there for the family. While it is important to focus on female candidates, due to their historic and current lack of representation, this can be done without sexist overtones. As Jeewa noted, however, the JSC’s historic track record is slathered in sexism. It must do better.

Finally, the JSC has never once stuck to its own timetable, dragging on endlessly into the night, much to the chagrin of reporters and candidates. It is time (excuse the pun) for this to be reined in, too.