Chapter 8 of the Constitution of South Africa:
So the constitution sets out the provisions for the construction of the Judicial Service Commission (JSC), and sets out the process for the appointment of judges, and magistrates.
For the JSC to appoint a person, they have the following criteria in terms of section 174 (1).
- Appropriately qualified;
- a fit and proper person; and
- they must consider the need for the judiciary to reflect broadly the racial and gender composition of South Africa.
There are no other legislated guidelines.
In 1998 the late Chief Justice Ismail Mohamed introduced additional guidelines for the selection and appointment of judges (referred to as the Mohamed guidelines). These guidelines were agreed to by the JSC sitting at the time of his Chairmanship. The Mohamed guidelines suggested that in elaboration of the first three criteria the following should be considered:
- The applicant had to be a person of integrity;
- A person with the necessary energy and motivation;
- A competent person, both technically as a lawyer, and with respect to the capacity and ability to give expression to the values in the constitution;
- An experienced person, both technically, with the capacity and ability to give expression to the values in the constitution;
- A person with appropriate potential, so that any lack of technical experience could be made up by intensive training; and
- Whether the applicant’s appointment would be symbolic in sending a message to the community at large.
Criteria virtually identical to these were adopted in 2010.
According to Advocate Milton Seligson, SC, “An important requirement developed by the Commission is that an applicant must have acted as a judge in that court, and delivered a satisfactory level of performance, measured both qualitatively with reference to judgments delivered, and the comments of the permanent judges who have worked with the candidate, and in terms of the level of diligence displayed in producing judgments, and not having delayed unduly in handing down reserved judgments.”
The JSC itself has further elaborated the important criteria in correspondence with the DGRU as:
- The recommendation of the Judge President;
- The support of the candidate’s professional body;
- The need to fulfill the constitutional mandate around transformation so as to reflect the ethnic and gender composition of the population;
- The judicial needs of the division concerned;
- The candidate’s age and experience, including whether they have served as an acting judge in that division;
- The relative merits and strengths of the candidates in relation to one another.”
This is Judges Matter’s understanding of the criteria that should be broadly considered by the JSC when selecting candidates for judicial appointment. There is no formal current document or known adopted list of criteria that we are aware of the JSC using at present.