Sifiso Msomi’s questions in the October 2019 interviews

How commissioner Sifiso Msomi’s questions in the October 2019 interviews brought the issue of the JSC criteria into sharp focus

The Judicial Service Commission (JSC) interviews candidates for the judicial posts available across South Africa and following those interviews the JSC makes recommendations to the President for appointment to the bench.

Judges Matter has previously noted that there is uneven questioning during the JSC interviews. The time allocated to candidates frequently varies dramatically, and there is often a wide range of issues canvassed, with some candidates being asked completely different questions to others. The uneven questioning inevitably leads to the issue of the criteria applied by the JSC. What are the criteria for a good judge, and how do you test for those characteristics in an interview?

What are the criteria for a good judge, and how do you test for those characteristics in an interview?

This issue came to the fore during the JSC interview of magistrate Sheila Cheiramiwa Lushaba (magistrate Lushaba). Magistrate Lushaba was interviewed by the JSC in October 2019 for a non-judicial vacancy in the Electoral Court – a specialised high court set up to deal with electoral disputes. During the 59-minute interview various questions were posed to magistrate Lushaba by various commissioners including the Judge President of the Electoral Court, Judge President Mbha. However, it is commissioner Sifiso Msomi’s questions that brought the issue of the JSC criteria into sharp focus (commissioner Msomi).

COMMISSIONER MSOMI’S QUESTIONS ON THE ELECTORAL REGIME  

Commissioner Msomi, whose line of questioning often goes into the issue of criteria for appointment of candidates to the bench, did not disappoint during the interview of magistrate Lushaba. Commissioner Msomi commenced his line of questioning with a relatively straightforward question to magistrate Lushaba as follows:

“In 1999 there was a high voter turnout but now there has been a lesser voter turnout. What can this decrease be attributed to and what advice can be given?”

Thereafter commissioner Msomi went to the crux of his line of questioning which was very relevant and necessary considering the interview was for a specialised court. Commissioner Msomi’s second question was:

“After the 2019 elections there are those who are calling for what they term – the dusting off of the Dr Van Zyl Slabbert report. Are you able to comment on that call? What did the Van Zyl Slabbert report say about the electoral reform and what are your views on that subject?”

Having observed that the candidate was unable to adequately answer the questions posed by commissioner Msomi, Judge Mbha immediately intervened. In shielding the candidate from having to answer the questions posed by commissioner Msomi, Judge Mbha inter alia noted as follows:

“I am not sure that it is appropriate in my view to be asking such questions. What is expected of a candidate is to show a working knowledge of legislation on how the Electoral Court works. The candidate has answered the question. She has familiarised herself with the applicable legislation. As to whether the candidate has read what Mr Van Zyl says…I wish to put it on record that as the head of the Electoral Court I have not read Mr Van Zyl’s report. I am wondering whether the question is actually fair to the candidate.” (our emphasis)

In support of Judge President Mbha the Chief Justice immediately intervened too. From thereon there were various exchanges made between the Chief Justice and commissioner Msomi. Commissioner Msomi thereafter made the following important point:

“I would have expected that the broader South African populous will want to know whether the person who has applied to sit on the Electoral Court, understands the dynamics of our electoral regime, the calls for changes of the electoral regime.”

It was evident that the candidate, magistrate Lushaba, could not answer the question on the dynamics of our electoral regime and the various calls for changes to the electoral regime. Be that as it may, commissioner Msomi boldly stuck to his guns and drove home his point that candidates who are before the JSC must be reasonably well-versed in all aspects of the law applicable to the court for which they are being interviewed. This expectation is not an unreasonable one. However, both the Chief Justice and Judge President Mbha did not agree with him and had remarked that, just like the candidate, they too have never read the van Zyl Slabbert report.

THE VAN ZYL SLABBERT REPORT

Politics play a vital role in our day-to-day lives. Knowing what the van Zyl Slabbert Report is, its purpose and its outcomes is not an unreasonable expectation, especially for a person seeking to be appointed in a position at the Electoral Court.

On 20 March 2002 the Cabinet resolved that an Electoral Task Team (ETT) must be established to draft the new electoral legislation required by the Constitution. The ETT was chaired by Dr Frederik van Zyl Slabbert. The intention of the van Zyl Slabbert research report was to establish to what extent voters identified with and understood the current electoral system and to identify indicators of the need for adjustments or amendments. The Interim Constitution of the Republic of South Africa, 1994, provided for the members of the National Assembly and the legislatures of the nine then-new provinces to be elected in 1994 by universal adult franchise in accordance with a system of proportional representation. The majority in the ETT felt that the time was right for considered and carefully planned change in the electoral system.  It was the majority’s view that it would be worthwhile to make legislative provision for an electoral system that can evolve towards a larger multi-membership constituency system with a compensatory national list. The majority was satisfied that the proposed electoral system would contribute towards a political accountability demonstrably and effectively.

THE NEED TO BRING THE APPLICATION CRITERIA TO THE FOREFRONT

The various exchanges between the Chief Justice, Judge President Mbha and commissioner Msomi are a clear indication that the application of a clear criteria ought to be at the forefront during the JSC interviews. One cannot help but wonder: firstly, are there set criteria adhered to by the JSC during interviews? Secondly, if not, had there been a clear criterion applied by the JSC during interviews, would the disagreement between the Chief Justice, Judge President Mbha and commissioner Msomi still have occurred? Lastly, Ms Lushaba was not recommended to the President for appointment at the Electoral Court. Had commissioner Msomi not followed the line of questioning which he did during this interview, would she have been so recommended?

Watch the inter view here: