The need for a set of clear criteria to ensure a minimum standard

On 30 September 2021, Judges Matter held a webinar to discuss issues relating to the criteria employed by the Judicial Service Commission (JSC) when seeking to appoint judges to the bench. The webinar comprised of three speakers, Adv Dali Mpofu SC, Adv Morne Olivier and Mr Dan Mafora who is a Researcher for the Council for the Advancement of the South African Constitution (CASAC). Click here to watch the webinar.

The October 2021 JSC interviews

A week later (from 4 to 8 October) the JSC interviewed approximately 65 candidates for appointment to 31 vacancies in the superior courts. The interviews were chaired by Acting Chief Justice Raymond Zondo, as the then Chief Justice Mogoeng Mogoeng was at that time on long leave. Former Chief Justice Mogoeng has since retired. While overall the October 2021 interviews were much more dignified and respectful, they were not without controversies. These controversies included the re-run of the April 2021 interview for the Constitutional Court (which produced the same outcome), the non-appointment of white men to the Constitutional Court, and some startling answers given by the candidates. However, such controversies were less critical that those that emerged during the April 2021 interviews. The controversies in the October 2021 round of interviews largely related to the issue of criteria employed by the JSC during the interviewing process. This is precisely the issue that was dealt with during the Judges Matter webinar.

Advocate Mpofu SC addresses the issue of criteria

Days after the October 2021 JSC interviews ended, Advocate Mpofu SC, as the spokesperson of the JSC, took it upon himself to shed some light into the issue of criteria during a media interview with eNCA’s Thulasizwe Simelane.

During Adv Mpofu SC’s interview the fact that the same candidates as in April 2021 were recommended to the bench came to the fore. Adv Mpofu SC explained that various factors were considered by the JSC commissioners, which led to the decision that the same candidates that were recommended for appointment to the Constitutional Court in April 2021 should be recommended again in October 2021. The explanation provided by Adv Mpofu SC went to the nub of the issue, which is criteria.

Adv Mpofu SC noted that candidates come from different streams of the legal profession. This fact inevitably means that different questions will be applicable to different candidates, depending on the stream of the legal profession they come from. Importantly, Adv Mpofu SC also noted that the starting point when interviewing candidates is the fitness of the person to do the job. Experience, the kind of judgments that a candidate has handed down, and time as an acting judge also goes to the issue of fitness, he explained. Regarding acting experience, Adv Mpofu SC highlighted that one of the candidates said that had she not acted in the court that she was being interviewed for, she would not even have applied for the position because she would not have known what to expect. The general pedigree of a candidate is also considered by the JSC, he added.

Adv Mpofu SC also referred to the imperatives that are set out in section 174 of the Constitution, relating to race and gender. Section 174 makes provision for the appointment of judicial officers in general, and states:

“(1) Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.

(2) The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.”

Adv Mpofu SC emphasised that the issues of race and gender must be weighed up with the general fitness questions. A candidate might be generally experienced but may lack experience in Constitutional issues. A candidate might have judgments that have been questioned or might have judgments that have not been questioned. Other general issues might also come into play. Adv. Mpofu SC further reiterated that the interviews are a complicated weighing process, there is no silver bullet point, and the process is not as easy as it looks.

Adv. Mpofu SC further reiterated that the interviews are a complicated weighing process, there is no silver bullet point, and the process is not as easy as it looks.

The question of race and gender

When considering the issue of race and gender, the JSC does not focus on the composition of the particular court it is interviewing for, but it focuses on the composition of the judiciary as a whole, Adv Mpofu SC said. He further noted that what the JSC is trying to do is to deal with the historical exclusion of black people and women in the Constitutional Court and other courts. Adv Mpofu argued that people who criticise the JSC are people who look at the interviews too narrowly, including special interest groups (presumably in reference to groups like CASAC). “The JSC will not ignore the constitutional provisions which relate to race and gender. Should there be a suggestion that the JSC ignores the constitutional imperatives relating to race and gender, then a constitutional amendment must be agitated for” Adv Mpofu SC added.

From Adv Mpofu SC’s interview, the JSC’s views in respect of criteria appears to be that there cannot be set criteria because various issues must be considered in respect of each individual candidate. However, in the same breath the JSC (through Mpofu) acknowledges that the interview process is not as easy as it looks because it is a complicated weighing process.

…the JSC’s views in respect of criteria appears to be that there cannot be set criteria because various issues must be considered in respect of each individual candidate.

When speaking about the issue of criteria, it is important that one does not assume that criteria will equate to a standard set of questions that will be posed to each candidate (and which candidates can prepare for). A written criteria cannot also be applied inflexibly, regardless of the general pedigree of the candidate and the particular position they are being interviewed for. This cannot be so!

What Judges Matter argues for is a set of criteria that seeks to ensure that there is a minimum standard that the JSC must employ when interviewing each candidate.

We need a set of clear criteria to ensure a minimum standard

What Judges Matter argues for is a set of criteria that seeks to ensure that there is a minimum standard that the JSC must employ when interviewing each candidate. The minimum standard would define the essential qualities a candidate must possess in order for them to be considered for judicial appointment. The minimum standard would then need to be adjusted according to each individual candidate’s general pedigree and the particular position they are being interviewed for. Considering the recent controversies arising out the recent JSC interviews, it would be prudent for the JSC to have a set criteria as this will ensure that the weighing up process is not as complicated as the JSC says it is.