COVID-19’s impact on the judiciary
On the 15th of March 2020, President Cyril Ramaphosa addressed the nation on a matter he referred to as one ‘of great national importance’. He noted that the world was going through a medical emergency graver than that which had been experienced at any other time, in the last century. Accordingly, there was a need for urgent and drastic measures to manage the COVID-19 pandemic, protect the people of South Africa and reduce the impact of the virus on the society and economy.”[1]
In response “the President declared a national state of disaster in terms of the Disaster Management Act 57 of 2002. With various pieces of legislation and disaster regulations, the government imposed an initial 21-day lockdown. The rationale behind this lockdown was that to save millions of South Africans from infection, and to save hundreds of thousands of lives. A trade-off had to be made with the negative impact on livelihoods and the economy.”[2]
“The appointment process of permanent judges to the superior courts was negatively impacted by the COVID-19 pandemic.”
The process for the appointment of judges during lockdown
But. the COVID-19 pandemic not only negatively impacted livelihoods and the economy of South Africa, it also negatively impacted the judiciary; in particular the appointment process of permanent judges to the superior courts.
The appointment of judges is conducted by the Judicial Service Commission (the JSC) (To read more about the appointment process click here). The JSC is informed by the head of court (Chief Justice, President of the Supreme Court of Appeal or Judge President), when there are vacancies in the respective superior courts.
It is thereafter incumbent upon the JSC to inform the various legal bodies of the existing vacancies and call for nominations of persons interested in being appointed as permanent judges of the superior courts. These nominations are then submitted to the JSC, including the details and position of the particular court for which the nominations are made, the CV and the completed questionnaire prepared by the JSC.
Once the nominations have been received, the shortlisting process is undertaken by the “screening committee” of the JSC. After the shortlist has been approved by the full JSC, it is circulated to the various legal bodies, and the nominated candidates are called for an interview hearing.
The impact of COVID-19 on the 2020 and 2021 judicial appointments
On 15 November 2019, the JSC called for nominations to fill the various judicial vacancies in the superior courts. This call was made in respect of a total of 14 vacancies within the judiciary. The vacancies were as follows:
- One Constitutional Court vacancy;
- Two Electoral Court vacancies (one non-judge member and one candidate who is already a judge);
- Two vacancies for the Gauteng Division of the High Court for secondment to the Land Claims Court;
- Three vacancies for the KwaZulu-Natal Division of the High Court (one for the Pietermaritzburg Division of the High Court, one of the Durban Division of the High Court and one for secondment to the Land Claims Court);
- Four vacancies for the Mpumalanga Division of the High Court; and
- Two vacancies for the North-West Division of the High Court.
A total of 27 candidates were shortlisted for the above vacancies.
- Eight candidates were shortlisted for the Constitutional Court.
- No candidates were shortlisted for the Electoral Court vacancies as, according to the JSC, there were no suitable candidates.
- Two candidates were shortlisted for the Gauteng Division of the High Court, for secondment to the Land Claims Court.
- Five candidates were shortlisted for the KwaZulu-Natal Division of the High Court (Pietermaritzburg Division of the High Court and Durban Division of the High Court).
- Two candidates were shortlisted for the KwaZulu-Natal Division of the High Court, for secondment to the Land Claims Court.
- Two candidates were shortlisted for the Mpumalanga Division of the High Court (deputy Judge President vacancy).
- Seven candidates were shortlisted for the Mpumalanga Division of the High Court (Mbombela and Middelburg).
- One candidate was shortlisted for the North-West Division of the High Court.
April 2020 JSC interviews postponed due to COVID-19
“…on 31 March 2020 the JSC made an official statement noting that in view of the lockdown announced by the President of the Republic of South Africa and the uncertainty caused by the COVID-19, the JSC had, regrettably resolved to postpone its sitting that was scheduled for 20 to 24 April 2020 indefinitely.”
Given the large number of vacancies that existed as of 15 November 2019, when the call for nominations was made by the JSC, one would have expected that the JSC would have taken the necessary measures, and made the necessary arrangements to ensure that these vacancies were filled in April 2020.
The interviews were scheduled to convene on 20 to 24 April 2020 at the Office of the Chief Justice in Noordwyk, Midrand. However, on 31 March 2020 the JSC made an official statement noting that in view of the lockdown announced by the President of the Republic of South Africa, and the uncertainty caused by COVID-19, the JSC had regrettably resolved to postpone its sitting scheduled for 20 to 24 April 2020 indefinitely.
This meant that the vacancies that existed within the judiciary (superior courts) would not be filled. Inevitably resulting in the continuation of acting judges being appointed to act until the vacancies were permanently filled. The second sitting of the JSC, in October 2020, was also deferred, with no call for nominations for the October 2020 interviews.
Instead, on 20 October 2020 the OCJ called for nominations to fill additional vacancies that arose after the shortlisting for the April 2020 interviews. This call was made in respect of a total of 28 additional vacancies (inclusive of the Electoral Court vacancy for which the JSC did not shortlist post the April 2020 interviews).
The October 2020 vacancies listed were as follows:
- One vacancy for the Constitutional Court;
- Five vacancies for the Supreme Court of Appeal;
- One vacancy for the Competition Appeal Court (Judge President);
- One vacancy for the Competition Appeal Court;
- One vacancy for the Eastern Cape Division of the High Court (Mthatha);
- One vacancy for the Electoral Court (judgeship vacancy);
- One vacancy for the Free State Division of the High Court (Deputy Judge President);
- One vacancy for the Gauteng Division of the High Court (Deputy Judge President, Gauteng Local Division of the High Court);
- Six vacancies for the Gauteng Division of the High Court;
- One vacancy for the KwaZulu-Natal Division of the High Court;
- One vacancy for the Labour Court;
- One vacancy for the Limpopo Division of the High Court (Deputy Judge President);
- Two vacancies for the North West Division of the High Court;
- One vacancy for the Northern Cape Division of the High Court (Deputy Judge President);
- Two vacancies for the Northern Cape Division of the High Court; and
- Two vacancies for the Western Cape Division of the High Court.
A total of 65 candidates have been shortlisted for the above vacancies.
- 10 candidates have been shortlisted for the Constitutional Court vacancy.
- 11 candidates are shortlisted for the Supreme Court of Appeal vacancies.
- One candidate is shortlisted for the Eastern Cape Division of the High Court vacancy.
- Three candidates are shortlisted for the Free State Division of the High Court (Deputy Judge President) vacancy.
- One candidate is shortlisted for the Gauteng Division of the High Court (Deputy Judge President) vacancy.
- 14 candidates are shortlisted for the Gauteng Division of the High Court vacancies.
- Five candidates are shortlisted for the KwaZulu-Natal Division of the High Court vacancies.
- Four candidates are shortlisted for the Labour Court vacancy.
- Three candidates are shortlisted for the Limpopo Division of the High Court (Deputy Judge President) vacancy.
- Two candidates are shortlisted for the North West Division of the High Court vacancies.
- One candidate is shortlisted for the Northern Cape Division of the High Court (Deputy Judge President) vacancy.
- Three candidates are shortlisted for the Northern Cape Division of the High Court vacancies.
- Seven candidates are shortlisted for the Western Cape Division of the High Court.
Given the massive number of candidates shortlisted, a total of 92 candidates in respect of both individual shortlists, the JSC sitting will convene on 12 to 23 April 2021 at the Office of the Chief Justice in Noordwyk, Midrand.
Two shortlists for the April 2021 sitting of the JSC
There are currently two shortlists for this sitting and the JSC has not advised how these interviews will be conducted. There are candidates who have been shortlisted for both the April 2020 and April 2021 sitting. Common sense would dictate that the JSC would interview those candidates shortlisted for the April 2020 sitting during the first week of the sitting (12 to 16 April 2021). Candidates shortlisted for the April 2021 sitting would be interviewed during the second week of the sitting (19 to 23 April 2021).
Meaning those candidates who have been shortlisted for both the April 2020 and April 2021 sitting would be interviewed during the first week of the sitting, and that that interview would also consider the vacancy they are shortlisted for in April 2021.
What procedure will the JSC follow in April 2021?
Upon inquiry as to how the JSC would manage the sitting, considering there are two shortlists, something that has never happened before, we were advised that prior to interviewing the candidates shortlisted for the Constitutional Court vacancies on 12 April 2021, the JSC would consider and decide on the procedure to be followed. Considering the number of vacancies and the massive number of candidates shortlisted, one would expect that the JSC would have an already clear procedure at hand that it would follow in the April 2021 sitting.
“There are currently 42 vacancies in the superior courts that the JSC must fill in April 2021. This is a massive number of vacancies and the JSC is faced with a massive duty to attend to.”
It is clear from the above that the COVID-19 pandemic has negatively impacted the judiciary. There are currently 42 vacancies in the superior courts that the JSC must fill in within 2 weeks, in April 2021. This is a massive number of vacancies and a massive undertaking that the JSC has a duty to attend to.
[1] J A Mavedgenge ‘COVID-19 Pandemic and Socio-Economic Rights in Selected East and Southern African Countries’, (2020) 1st ed Juta and Company (Pty) Ltd 11.
[2] J A Mavedgenge ‘COVID-19 Pandemic and Socio-Economic Rights in Selected East and Southern African Countries’, (2020) 1st ed Juta and Company (Pty) Ltd 11.
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