A review of the JSC April 2022 interviews
Something old, something new, something borrowed, something blue: A review of the JSC April 2022 interviews
The April 2022 interviews were always going to be a weathervane of sorts, as the first Judicial Service Commission (JSC) sitting to be chaired by a new, now permanently appointed chief justice, Raymond Zondo. In this article, Judges Matter reviews the week-long interviews and what they tell us about the future of the JSC.
Like all good weddings, the JSC’s April 2022 sitting had something old, something new, something borrowed and something blue.
Something old: the JSC mandate and ‘new’ criteria
The JSC set aside the whole of the first day (Monday, 4 April) for what it euphemistically called “a discussion on JSC mandate”. In the days leading up to the JSC sitting, we understood this to mean a deep introspection on how the JSC goes about conducting interviews, leading to concrete measures including written criteria for judicial appointments, refreshed rules of procedure, and a code conduct of conduct for commissioners.
Late on the evening of Day 1, the JSC issued a statement triumphantly announcing that, after a whole day of debate and discussion, they had settled on criteria for judicial appointment. The excitement of this announcement quickly died down when we realised that these criteria were not new at all, but simply a rehash of the outdated 2010 criteria, with a commitment to review and supplement them. “We’re going back to the future,” is what lingered in our minds.
There are two ways to interpret this development. First, the JSC felt under pressure to act but had no time to settle on what would be contained in the new criteria. President Ramaphosa took a month to decide on Chief Justice Raymond Zondo’s appointment and gave him a start date of 1 April, only one working day before the start of the JSC sitting, which he would chair. Therefore, dusting off the old, disused 2010 criteria was one way of appeasing the masses by giving a semblance of having done something to address the biting criticism of the JSC.
The second, more charitable reading, is that the JSC is committed to change but first needed to settle on its internal arrangements before diving into major, structural changes like criteria. This makes sense, considering the changes in key members of the JSC such as the chairperson, two new commissioners, and the departure of long-time secretary, Mr Sello Chiloane.
Despite this, the need for reform remains, especially in a year when the JSC will have to finally fill all the vacancies on the Constitutional Court (including the deputy chief justice position, and several other key, leadership positions across various courts, including the Supreme Court of Appeal.)
However, what this Day 1 discussion tells us is that there is at least a commitment by the JSC to changing the way it does its work. As the week’s interviews unfolded, one got the distinct impression of a new JSC that was more focused and more dignified.
Something new: a change in the JSC guard
There is no doubt that the chairperson of the JSC plays the most significant role in how the body operates. JSC members have always taken their cue, almost by osmosis, from their chair. Bad habits developed during the chairmanship of former Chief Justice Mogoeng Mogoeng. Interviews would sometimes veer into the terrain of the irascible and loud-mouthed. Commissioners were allowed large amounts of time to pursue narrow political agendas, or for questions that had very little to do with the position to be filled. Grandstanding, long-winded introductory remarks to questions, interviews lasting late into the night (and on occasion early in the morning), ad hominem attacks, hostility, and disrespect towards particularly black female candidates, were some of the trademarks of Mogoeng’s JSC.
The April 2022 session was therefore seen as somewhat of a ‘changing of the guard’ at the JSC, with CJ Zondo as the new chairperson. He came to the position not only with previous experience of having successfully run the October 2021 JSC session, but also with fresh wounds from his own bruising encounter with the JSC during the chief justice interviews in February 2022.
Zondo did not disappoint. Throughout the week he kept a firm grasp on the proceedings. He would often begin interviews with a reminder (probably to commissioners) that the JSC had committed to acting with dignity and respect to the candidates and the process. At several points, he would pull commissioners back from asking longwinded questions that were neither probing nor insightful. He was also quick to intervene when candidates meandered. Well, for all candidates except KZN Judge President candidate, Judge Mjabuliseni Madondo, whose interview came on the last day and whose longwinded responses tested the patience of all, with very limited intervention from Zondo.
The April 2022 sitting also marked a changing of the guard in terms of the administration of the JSC. Longtime JSC secretary Mr Sello Chiloane gave way to Ms Yvonne van Niekerk, a former Constitutional Court law clerk and senior official in the Official of the Chief Justice. Having served under 2 chief justices, Mr Chiloane was often seen as the CJ’s ‘right hand man’ (and, less flatteringly, as chief protector). He had weathered numerous storms. Ms van Niekerk doesn’t have much of a public profile and her tenure as secretary will likely be watched closely.
There were also two new commissioners who joined the JSC during the April 2022 session: advocates Sesi Baloyi SC (appointed by the President, to replace Griffits Madonsela SC) and Kameshni Pillay SC (nominated by Advocates for Transformation to represent the advocate’s profession in place of Dali Mpofu SC). Both women come with stellar reputations of integrity and leadership. Baloyi SC was chairperson of the Johannesburg Bar Council. Pillay SC is a member of the Legal Practice Council.
In that Day 1 meeting, the JSC elected Baloyi SC as its new spokesperson, and she had to hit the ground running. Following the interviews for the Concourt on Day 2, the JSC decided to fill only one of the two vacancies, and submitted only 4 names to the president, thereby dropping Judge David Unterhalter’s name from the list – unleashing a storm of criticism (see here, here, and here).
In a heated exchange between Baloyi and News24’s Karyn Maughan, the journalist asked a series of tough questions on why the JSC would choose to leave the vacancy open, when there were sufficient candidates available, and if this meant that the JSC found Unterhalter unsuitable. Baloyi, in a calm yet firm tone, explained that the JSC would communicate its reasons to the president first, before making them public – and that she would “take it no further”. You could cut the tension with a knife.
Baloyi also played the role of a ‘sweeper’ during the interviews and would come in towards the end of the interview with probing questions, as yet unanswered by the candidate. Baloyi grilled KZN High Court candidate Linus Phoswa – a magistrate of 20 years’ standing – on his poor judgment-writing style, which seemed to leave out essential details in the parties’ arguments. Needless to say, he was not appointed.
Pillay SC’s performance throughout the week also received high praise. When KZN Deputy Judge President Mjabuliseni Madondo was asked if the homophobic tone of his 2019 book titled ‘Revelations of God’s Truth and Plan’ could be reconciled with the non-discrimination values of the Constitution, his response was that the text was an interpretation of the Bible and quoted out of context. But this did not sit well with Pillay SC. She asked and was given special permission by CJ Zondo to quote larger extracts from Madondo’s book, which clearly showed that the general tenor of the book (and Madondo’s own opinion) was homophobic.
This prompted other commissioners to put forward even more questions about how Madondo could reconcile this homophobic stance, with his role as a senior judicial leader. Justice Minister Ronald Lamola asked if Madondo’s views help in the fight against hate crimes against LGBTIQ+ people; Parliamentary Speaker Nosiviwe Mapisa-Nqakula expressed shock and asked if litigants would feel comfortable coming before a judge with such views and, in a parting shot, spat “judge, you are homophobic!” to Madondo. Even though he was the sole candidate, Madondo was ultimately not recommended and the position of KZN Judge President was left vacant.
Something borrowed: the 2010 JSC criteria
At the beginning of most of the interviews of the April 2022 sitting, CJ Zondo reaffirmed that the JSC would be abiding by the 2010 criteria— and that these would guide the questions being asked. The questions, Zondo reassured, would be “robust” while remaining respectful of individual dignity and basic courtesy.
As mentioned earlier, the 2010 criteria are “borrowed” from a previous era of the JSC, and they are not new at all.
Although the JSC’s commitment to some form of criteria is important, the 2010 criteria do not go far enough in addressing the criticisms of the JSC’s appointment process. Not only are the 2010 criteria vague, but they no longer speak to modern developments in the judiciary and the JSC itself. For example, while the criteria speak of ‘technical competence’ and ‘technical experience’, it’s unclear how the JSC measures and weighs these factors (does 19 years’ experience as a magistrate outweigh 11 years as an attorney?). The criteria also speak of ‘potential’, which is a factor previously used as a proxy for transformation as at the time there were areas of law that black people were not exposed.
Related to criteria, the issue of experience as an acting judge also dominated interviews throughout the week. Many commissioners (particularly practitioners) noted that the process of appointing acting judges is opaque and unfair, and may also reinforce tribalistic regionalism, while being vulnerable to corruption and nepotism. Ironically, the 2010 criteria say nothing about acting experience even though it’s now seen as an essential requirement.
Considering this, the JSC’s commitment to have its Rules Committee review and possibly supplement the criteria should be welcomed. Hopefully, such a review would yield a more pragmatic set of criteria, that would maintain rigour, while being flexible enough to allow a diversity of experiences and perspectives to come onto the bench. We will follow the review process closely.
Something blue: the JSC’s non-appointments
For the April 2022 sitting, the JSC had to fill 16 vacancies at various courts, including the Constitutional Court, leadership positions in KZN and North West High Courts, specialist courts, and several provincial divisions of the High Court.
In the weeks leading up to the interviews, the JSC indicated (without providing reasons) that it would not fill the three judge vacancies in the Competition Appeal Court.
Furthermore, one of the six candidates shortlisted for the Constitutional Court dropped out days before the interviews; and the sole candidate for the Land Claims Court did the same.
By the end of that week, the JSC had interviewed 28 candidates but only recommended 7 candidates to fill various High Court positions, and nominated 4 candidates to fill one of the two Concourt vacancies. This is a paltry yield.
The more optimistic reading of the JSC’s non-appointment record is that the process is more rigorous and thus candidates are simply failing to clear the minimum threshold. This is probably true for candidates who were completely unappointable – like Mr Vusi Nkosi, whose disastrous interview revealed that he has a string of reserved judgments and part-heard trials running since at least 2015. However, this optimistic reading throws up questions about how candidates like Mr Nkosi were shortlisted in the first place. Clearly, the process is not rigorous enough.
But where this charitable reading falls completely apart is when you consider the otherwise decent candidates whom the JSC overlooked. There were 7 candidates shortlisted for 3 judge vacancies in KZN, but the JSC only appointed one: respected Durban Advocate Rob Mossop SC. The two other silks on the shortlist, Advocate Hoosen Gani SC – a senior advocate with extensive experience in commercial law (including as a commercial law lecturer) – together with Advocate Elmarie Bezuidenhout SC – one of few women silks in Pietermaritzburg – were not appointed. Both these candidates far surpass the minimum criteria for appointment, while also satisfying the diversity requirement in terms of section 174(2) of the Constitution. The JSC’s decision to leave these two vacancies open, and the Constitutional Court vacancy open, when suitable candidates are available, is therefore startling. (And maybe inconsistent with the Supreme Court of Appeal judgment in the Cape Bar Council case).
The practical impact of the JSC leaving these vacancies open is felt in the day-to-day operations of these courts. The Constitutional Court has now gone almost 3 years without a full complement of permanent judges. The Pietermaritzburg High Court is famous for having some of the oldest crop judges on average, which is actually a good thing as they bring a wealth of experience, but it also means that many of them will retire in the next few years. This means that by the time the JSC fills these vacancies (in the case of KZN, probably in April 2023), there would be huge gap in experience at the court, with the concomitant impact on case finalization rates. In an ideal world, you would want to replace experienced judges with experienced lawyers. By deciding to leave the vacancies open, even when such experienced lawyers are available for appointment, the JSC sends a message that these candidates are not welcome. Our courts are poorer for it.
From the April 2022 sitting, it is clear that the JSC has the will and the commitment to turn a corner. However, such commitment must be followed through with tangible action. There still needs to be clear rules of procedure and a code of conduct for commissioners in place, and the JSC’s Rules Committee needs to start work on revising the criteria. The problem of the JSC not filling vacancies when suitable candidates are available is an old problem, but considering the modern needs of the courts, it’s become a fresh threat to the proper functioning of the judiciary.
The JSC will meet on 20 June to interview Justice Mandisa Maya for the position of Deputy Chief Justice. With the JSC having recently interviewed her for chief justice – an interview that attracted harsh criticism – the JSC will again be under the spotlight on whether or not it can sustain and consolidate the turnaround. We will be watching closely!