ANALYSIS: The JSC’s new criteria and the prospects for the success of its reform agenda
NOTE: Following the release of the JSC’s draft criteria in October 2022, Judges Matter researcher Vuyani Ndzishe and Mbekezeli Benjamin wrote an analysis of the criteria, pointing out some of their most important features. The JSC has since published final criteria which are largely the same as the draft. Therefore this analysis still holds true.
The Judicial Service Commission’s recently published draft criteria for judicial appointments seem to be putting it on a path of reforming itself to work better as a serious judicial appointments commission.
On Thursday, 28 October 2022 the Judicial Service Commission (JSC) released for public comment its draft criteria for judicial appointments. Adopted at the JSC’s biannual sitting earlier in the month, these criteria publicly symbolise the JSC’s commitment to transforming itself from yet another raucous, politicised and ineffective body, to a serious judicial appointments commission. But what do these criteria include, and what do they mean for judicial appointments?
The JSC’s history of bad behaviour
For several years, Judges Matter and several other civil society organisations have raised a lack of clear, enforceable criteria as the key weakness in the judicial appointments process. A lack of criteria meant that members of the JSC could ask anything of any candidate, regardless of whether it related to the candidate’s suitability to be a judge in our courts.
Indeed, we saw the most shocking abuse of this free-for-all style of questioning during the April 2021 JSC sitting, where judges were harassed by politicians for nothing more than political point-scoring. Unsurprisingly, Casac (the Council for the Advancement of the SA Constitution) sued the JSC and won a court order that those interviews be set aside and rerun.
At its next sitting in October 2021 — the first to be chaired by now Chief Justice Raymond Zondo — the JSC started what we now believe is a nascent reform mission. Although no binding commitments were made, JSC commissioners gave a symbolic undertaking that they would treat aspirant judges who came before them with dignity and respect.
That undertaking was short-lived, when, at the February 2022 interviews for Chief Justice, all four candidates were asked several questions that had nothing to do with the job of being Chief Justice. From sexist questions as to whether SA was “ready” for a woman Chief Justice, to unsubstantiated “rumours” (to quote advocate Dali Mpofu); nothing was off the table.
The JSC sat again in April 2022, where it formally tasked its Rules Committee to undertake a review of the criteria for judicial appointment. That review process culminated in revised guidelines which were considered at the JSC sitting earlier this month and published on Thursday for comment.
A bar on questions based on unsubstantiated allegations
Unsurprisingly, one of the major insertions in the new criteria and questioning guidelines is a prohibition on unsubstantiated questions.
In respect of questions on allegations that may affect the independence of the judiciary or a candidate’s dignity, reputation or privacy, the guidelines say that commissioners may not put a question to a candidate, “unless a sufficient substantiation for the allegation exists”.
Although the JSC cannot ignore serious disqualifying allegations, the guidelines say that “the allegations must be of such a nature that, if true, could potentially render the candidate not a ‘fit and proper’ person”.
These new guidelines allow the JSC to strike a balance between testing serious credibility allegations while being careful not to harm the candidate or the judiciary as a whole. This is important, as the guidelines also emphasise that the object of the selection process is to “discover candidates who are best qualified” but also that “judges of the highest calibre possible are appointed”.
Significantly, the new guidelines explicitly give the Chief Justice as chair of the JSC the duty to enforce the guidelines and overrule questions that may not be relevant to the criteria.
The qualities the JSC will look for in judicial candidates
The published guidelines set out concrete ideas on what the JSC considers when appointing judges. The 10-page document (which seems to draw heavily on a 2013 research monograph by the Democratic Governance and Rights Unit written by now Judge Susannah Cowen) substantially expands on the two vague judicial appointment requirements of “appropriately qualified” and “fit and proper” set out in section 174 of the Constitution.
Explaining what “appropriately qualified” means, the guidelines list academic qualifications, technical skills and legal experience. However, they go much further, adding a judicial track record and good judgment, knowledge of court procedure, forensic skills and the ability to run a courtroom. Candidates for specialist courts must have experience in the relevant area while those vying for judicial leadership positions must have a vision, good interpersonal skills, a demonstrated maturity of judgment and general leadership qualities.
In respect of the requirement that a candidate be a “fit and proper” person, the JSC guidelines list integrity, humility, judgment, independence, courage, capacity to explain their decisions cogently and concisely, an ability to give expression to the values of the Constitution, good judicial temperament, ethics, respect for judicial precedent, diligence and industry, among others. All these factors, the guidelines say, will be considered in a “holistic assessment of a candidate’s suitability for appointment to the Bench”.
Unlike both the 1998 and 2010 attempts at articulating criteria, the JSC devotes significant effort to the requirement for judicial independence. This is unsurprising, considering the pressures judges face in our current politically charged environment. The judiciary was the last line of defence in the many years of rampant State Capture, which is not yet a thing of the past. It is now also being asked to undo the damage, particularly in the commercial crimes courts and in the Special Tribunal.
“[A] judge is required to make up his or her own mind on an issue, independently of pressure or coercion from some other person or body, and independently of loyalty or affiliation to some other person or body,” the JSC draft guidelines say, adding that judges “must have the courage and the integrity to be able to resist pressure, which may be external, such as political, commercial or personal, or internal, such as a desire for popularity and even the pressure of a direct threat”.
The JSC guidelines then go on to mention that membership of a secret society or a close political affiliation or loyalty may be factors to consider in appointments (judges must resign political party membership on appointment).
“A personal history of hypocrisy, dishonesty, opportunism or expediency will disqualify a candidate from being appointed to judicial office,” the guidelines add.
What about the thorny issue of racial and gender transformation? The JSC guidelines explain that the Constitution’s requirement for racial and gender diversity is borne from an understanding that, in order to do justice, courts must “have the capacity to understand and relate to the experiences of all South Africans”.
Furthermore, “the court will not be competent to do justice unless, as a collegial whole, it can relate fully to experiences of all who seek its protection”. However, the requirement for transformation and diversity “cannot be understood to rigidly and mechanically require that each court represents the races and genders in direct proportion to their share of the national population”.
It seems to us that in assessing the transformation requirement, the JSC will take a pragmatic approach. Faced with a white male candidate, for example, the JSC may first look at that candidate’s qualifications and experience in an important area of law, the needs of the court and the judiciary at the relevant time, and the historical and contemporary discrimination prevalent in that area of the law.
These factors may be weighed against the candidate’s commitment and contribution to undoing that discrimination, including participation in community and professional structures. Finally, the JSC will look at the message that the candidate’s appointment will send to the wider community. Weighing all these factors up, the JSC may potentially decide to, for example, appoint a white man over a black woman.
Will the JSC clean up its act?
Although the new JSC guidelines are likely to be fully effective only from the JSC’s April 2023 round of interviews, there are many parts of them that are already being applied, judging from the JSC’s October 2022 interview round. In our view, this round seemed to be a lot more focused, and rigorous yet fair, than the interview rounds we’ve seen previously.
From the questions, it seems that commissioners had prepared thoroughly for the interviews. New commissioners, including Wits law Professor Clement Marumoagae and advocate Tembeka Ngcukaitobi SC joined advocates Sesi Baloyi SC and Kameshni Pillay SC and others in asking candidates about their legal skills and experience, judgments they had written, courtroom manner, and their broader understanding of the law and the Constitution. Even the politicians showed up, with ANC members Jomo Nyambi and Thami Dodovu leading the charge on questions about the role of the judiciary in broader society, joined by the IFP’s Narend Singh and EFF leader Julius Malema (attending virtually).
The JSC recommended Judge Norman Manoim (a white man) to head the Competition Appeal Court — a judicial leadership position — based on his wide experience as a competition law expert, and a decade as leader of the Competition Tribunal. After interviewing seven candidates (including four black African candidates) for four vacancies in the Gauteng High Court, the JSC appointed two white women and one Indian woman, leaving the other vacancy open, a surprising outcome.
Although the issue of women in judicial leadership dominated this interview round and will feature prominently in the April 2023 round (there are currently no women permanently in any of the 15 head of courts posts), the JSC ultimately recommended only Judge Thoba Poyo-Dlwati (a black woman) for KZN High Court Judge President. Meanwhile, it recommended a black man as head of the Electoral Court, the other leadership post in which a woman was also a candidate.
What this all boils down to is that the JSC seems to be on a path of reforming itself to work better as a serious judicial appointments commission. It seems to have shed its penchant for political antics, which had the effect of chasing good candidates away from making themselves available, even for prestigious appointments to the Constitutional Court. The new criteria go some way towards buttressing that view — however, it might be too soon to tell whether the JSC can properly clean up its act.
Vuyani Ndzishe is a research and advocacy intern, and Mbekezeli Benjamin is a research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at the UCT Law Faculty that monitors the judiciary of South Africa