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Is the process for the appointment of South Africa’s Constitutional Court judges flawed?

Is the process for the appointment of South Africa’s Constitutional Court judges flawed?

Is the process for the appointment of South Africa’s Constitutional Court judges flawed?

The way you design a process theoretically determines the end result. A good process for the appointment of judges should, in theory result in good judges. And of course, the converse.

But what constitutes a good process is a matter over which reasonable people might disagree. Here in South Africa we have a system for selecting new judges which includes the majority and minority parties, as well as representatives of the legal profession. The JSC in South Africa, who are appointed to nominate judges, includes many politicians. This certainly raises eyebrows in other countries on the continent, and indeed worldwide, where judges and lawyers dominate the recommendation process.

However; when it comes to the Constitutional Court, the President has a discretion to appoint from a shortlist.

In a paper delivered at the Mistra-Tmali-Unisa conference held in November 2014,  former Deputy Chief Justice Moseneke raised concerns about the “remarkable concentration of the President’s powers of appointment” with regards to the selection process of South Africa’s judiciary.

One of the powers the President has is to choose from a list of a minimum of four names sent to him by the JSC when it comes to Constitutional Court judges. Such a power was given to the President in Kenya in a legislative amendment and it is now the subject of constitutional challenge. The case is being made that such a power in the hands of the President amounts to a violation of the separation of powers. Can that argument be made in South Africa?

The process of appointment of Constitutional Court judges has certainly run into the doldrums. The JSC can’t just send through one name for appointment – they have to send three names more than the number of appointments to be made. So if its two appointments five names go forward, while if its only one appointment, then four names go forward. This results in the process being becalmed for long periods of time where less than four candidates put in applications for any one Constitutional Court position. Why this is, is the subject of another Judges Matter article.

Whether the process is fundamentally flawed is another question.

Is the appointment process for Constitutional Court judges in South Africa good enough? And if the process is good, does it in fact give us the results a good process should?


Comments (8)

  1. Avatar
    Lebowa moretsele
    Nov 1, 2016

    I think we should really amend the selection process due to the fact that it contracdicts the separation of powers.To strengthen our democracy we have to limit the powers of the president in that respect.

    • Avatar
      Feb 17, 2017

      I certainly agree with you. I think the Judiciary should be solely responsible for selection of Con court judges. Other representative bodies of the Trias Politica system, should be there to observe not form part of the commission!!!

  2. Avatar
    Wandi Mkhize
    Feb 17, 2017

    Regarding the issue of the Separation of Powers, I do understand that the President belongs to the branch called the Executive because he comes from government and he is also a head of state…..if he does these appointments how are his powers overlap or encroach on tge separation of powers when he is entursted with a duty to perform his powers as the head of state?

    • Judges Matter
      Judges Matter
      Feb 17, 2017

      The theory of separation on powers is that each part of government must do its work without interfering with the work of the other parts of government, and they must stay independent of each other. That is why the President is not allowed to choose the judges. Here he is allowed to choose a judge. Is that still ok? Is that judge going to be independent?
      Or will they remember they were appointed by the President and judge cases differently?
      These are some of our concerns with the process.

      • Avatar
        Sivuyile Mtsi
        Feb 19, 2017

        Then who is supposed to choose the judges? Under what circumstances are they to be chosen? Your article is both not well researched and very populist not say the least. Please present us with a workable theory and show how it has shown to be successful else where. Our system has produced one of the most well respected judiciary in the world due to the fact that judges are not politicians but high level civil servants who are tasked with upholding the laws of the land. You go to any country in the world, you will find the judiciary always at logger heads with the govt when it comes to the constitution. Go and do your research 1st before going on social media.

  3. Avatar
    Feb 18, 2017

    The process according to my perspective it’s totally wrong. The principle of separation of powers makes it clear that the powers need to be separated and if the president appoints judicial manners it means their powers has overlapped.. that’s why will face challenges where judges make decision in favour of the president

  4. Avatar
    Clifton Geswint
    Feb 19, 2017

    JSC ignoring my mails regarding an appointment of a judge found to have assault in his chambers when an advocate for Legal Resources Centre in Grahamstown

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