Analysis of the Judicial Service Commission April 2023 interviews
The recent April sitting of the Judicial Service Commission (JSC) was the third chaired by Chief Justice Raymond Zondo since he assumed permanent leadership of South Africa’s judiciary.
While part of the week saw Deputy Chief Justice Mandisa Maya filling in for Zondo, both judges played assured hands in restoring rigour and precision to proceedings.
In no small part this was down to Zondo’s public emphasis before each interview that the “dignity” of candidates needed to be protected, the introduction of fleshed out guidelines and criteria for commissioners who were limited to one question each and some assured behind-the-scenes manoeuvring.
As an example, Zondo tasked advocate Kameshni Pillay SC (the Advocates for Transformation representative who had replaced advocate Dali Mpofu SC) with pursuing any complaints lodged against a candidate which, if not picked up by other commissioners, would have otherwise gone unventilated. This increased fairness and accountability during interviews — while helping focus the process on judicial matters like reserved judgments, courtroom behaviour unbecoming of a judge and any substantive issues that may cause scandal or undermine the position of the individual and the judiciary.
In the air was the sense that this current incarnation of the JSC has caught a course-changing wind, moving away from the rancour, misogyny, political point-scoring and ad hominem attacks on candidates, academics, public interest legal organisations and “non-governmental organisations” which had become normalised during the latter years of former Chief Justice Mogoeng Mogoeng’s tenure.
These characteristics of the “Mogoeng JSC” reached their apogee at sittings such as the April 2021 interviews for Constitutional Court positions when KwaZulu-Natal High Court Judge Dhaya Pillay was bullied by EFF leader Julius Malema without protection by the chair, Mogoeng. The irrelevance of some of the questions and unevenness in treatment of candidates led to a court challenge by the Council for the Advancement of the South African Constitution, only averted by an agreement to have the interviews re-run.
Likewise, the February 2022 interview of prospective chief justices, chaired by acting president of the Supreme Court of Appeals, Xola Petse, demonstrated that even the anaemic guidelines and general precedents which the JSC had used until that point, could be ignored. Mpofu led a scurrilous ambush of Gauteng Judge President Dunstan Mlambo with allegations that were neither substantiated nor presented to him in writing before the interview — these are required since the interviews are a forensic process. Those parts of the interview remained in the record until after the completion of Mlambo’s interview and a lunch break, and a possible reawakening by Petse who then ruled they be struck off the record and not be considered — but the public damage had already been done to a conscientious judge president and decent South African. The delayed over-ruling also confirmed the desperate need for concrete criteria and guidelines to steer interviews.
Recently, there was a new esprit de corps at the commission. As one commissioner noted with relief, the toxic fog that had enveloped the JSC by 2022 had been removed from both proceedings and deliberations.
A change of personnel on the JSC by legal bodies and President Cyril Ramaphosa has assisted in this change of course towards the clearer air of the emergent “Zondo JSC”.
Ramaphosa’s appointment of advocates Sesi Baloyi SC and Tembeka Ngcukaitobi SC to the commission has certainly added steel and smarts to the body. They, together with Pillay and Carol Steinberg (alternating with Advocate Jennifer Cane SC) were a formidable, non-nonsense quartet all week: dissecting poorly written judgments, illogical legal rationale and a lack of critical reasoning while relentlessly testing candidates’ knowledge of the law.
It sometimes made for brutal, but always respectful and fair, interviewing. Fascinating viewing too.
Hardened lawyers all, they also moved beyond the posturing and performative aspects that candidates occasionally bring to interviews, sometimes to cover up professional short-comings. In the past commissioners warmed to some candidates with more chutzpah and charisma than Constitutional credentials, leading to questionable appointments of, for example, white males with dodgy socio-economic rights judgments or inexperienced judges who needed more acting experience, but were appointed merely to tick the numbers game that transformation had been reduced to.
Mandlenkosi Motha, an attorney and lecturer who was up for a position at the Gauteng High Court, had started his interview with grand flourishes critical of South Africa’s legal system which he considered to pay only lip-service to indigenisation and the use of customary law. He drew favourable responses from several of the commissioners.
But Ngcukaitobi was more rigorous.
“What I am worried about is that you don’t say one thing and do the other. You don’t come to us and say that I am all for black people but your judgments say something else,” Ngcukaitobi observed before delving into two separate judgments by Motha where he felt the candidate had “just applied the statute” and “not ubuntu or anything else” .
One related to the application of the Prevention of Illegal Evictions Act to a case involving the occupation of the garage of a holiday home and the other where Motha had declared a black businessman a delinquent director based on “pretty thin” reasoning according to Ngcukaitobi.
Motha responded that “context is everything” and that in the first instance the eviction related to a billionaire but eventually conceded Ngcukaitobi’s point that his judgment could have been written less generically and more “narrowly” so as not to cause potential future imperilment to black people living in precarious situations.
The candidate also explained the context around the second case, but Nguckatoni responded that his “principle point” was that Motha’s “professed statements that every time you approach a case you do it from the perspective of protecting black people, but I just don’t see it in any of the judgments you have written”.
Motha, who helped set up the Smalls Claims Court in Soweto where he has heard cases since 2013, qualified that he never said his “modus operandi” was to protect black people but nor was he putting on an Africanist show.
The exchange ended with Ngcukaitobi concluding that he wanted “to see where exactly in practise you have protected black people. It seems like what you have done is just apply the law as any ordinary judge would do, in any circumstances, and thats not a criticism.”
A rigorous examination of candidates’ understanding and use of customary law was a common — and welcome — theme of Ngcukaitobi’s questions during the week and stood in stark contrast to commissioners previously dealing with the issue quite superficially.
Likewise, where Mogoeng’s JSC had focused on the administrative abilities and personal skills of judges applying for senior positions in the judiciary, commissioners like Ngcukaitobi and Steinberg were cognisant of the intellectual role the Supreme Court of Appeal President plays in leading a division that is in some corners considered the lodestar in our judicial firmament.
Both pressed Supreme Court of Appeals judge Mahube Molemela, who successfully interviewed for the position of president of that division, on more insight into her judicial philosophy and the tensions that may be perceived between contractual law and the Constitution. Molemela’s responses were workmanlike in an otherwise very good interview.
Such sharp legal minds will probably dissuade chancers from seeking positions on the Bench, and they have also had a transformative effect on deliberations. While steering away from discussing the substance of the deliberations during the week, one commissioner noted that the newer lawyers on the commission, like Pillay, Baloyi and Ngcukaitobi brought fresh dynamics and ideas to the process, especially with their experience of working with a younger generation of judges and acting judges.
At the law’s coalface, such advocates experience judges who do not run courts efficiently, have not read the papers before a trial or reserve judgments for inordinate amounts of time, as miscarriages of justice for their clients. Likewise, there is concern among conscientious judges president that these phenomena are adversely affecting the smooth running of their courts — hence a clear emphasis on candidates’ work-rates, judgment writing abilities and knowledge of the law during these interviews.
But the most transformative aspect in ensuring smoother sailing during JSC interviews has been the introduction of twelve pages of guidelines and criteria which commissioners use to charter the course of interviews and candidates can fall back on as a reassurance they will receive a fair and thoughtful interview process.
Section 174 of the Constitution which requires judges to be “appropriately qualified”, “fit and proper” and that the judiciary “broadly” reflects the racial and gender composition of the country have been given considerable depth.
The document notes, for example that while it is “desirable for candidates to have acted in a judicial or quasi-judicial role… this is not an essential requirement, particularly when it comes to elevation to an appellate court, including the Competition Appeal Court, Labour Appeal Court, Supreme Court of Appeal, and Constitutional Court. Appellate experience both as a practitioner or as an acting judge would be a relevant consideration in the latter circumstance, but it should not be given excessive weight over other considerations.”
Mindful of the criticism the courts, including the Constitutional Court, have received for the quality of commercial law judgments and that many of these cases end up in external arbitration, the document notes that candidates should demonstrate “an ability to resolve commercial disputes in a just, economical and expeditious manner, with due regard to precedent”.
And with one eye on the present (and the future), “appropriately qualified” also includes “an understanding of social media and technology to enable [judges who are appointed] to deal with disputes concerning, for example, privacy, data gathering and the effects of the publication of damaging information…”
Point 25 of the Criteria handles transformation and representivity in a more nuanced manner than narrowly considering demographics, another characteristic of the Mogoeng JSC which undermined the commission’s objectives in the long run:
The criteria make the point that representation on the Bench “cannot be understood to rigidly or mechanically require that each court represents the races and genders in direct proportion to their share of the national population” and that a balance must be struck between the Constitutional imperative and the needs of a particular court. The criteria also emphasise the importance of diversity on the Bench but that it is “not an independent requirement, superimposed upon the constitutional requirement of competence. Properly understood, diversity is a component of competence – the Court will not be competent to do justice unless, as a collegial whole, it can relate fully to the experience of all who seek its protection.”
What was increasingly clear from the week-long sitting of the JSC was that, with a crew finding its sea-legs and a substantive map to charter its journey along, the “Zondo JSC” has the potential to steer clear of the tumultuous waters it found itself in during the Mogoeng years.
Written by: Niren Tolsi