JSC May 2024 Preview
JSC May 2024 Preview: A WEEK THAT MIGHT DECIDE THE NEXT DECADE FOR THE JUDICIARY
A week before the national elections, the Judicial Service Commission will sit for marathon interviews for the next Chief Justice and for multiple positions on the Supreme Court of Appeal (SCA). The interviews on both Monday 20th May and Tuesday 21st May, are crucial to the future of the South African judiciary for the next decade.
10 candidates are shortlisted for three vacancies on the SCA bench. This SCA interview round is essentially a re-run of the October 2023 interview session. Then, the JSC interviewed 10 candidates but bizarrely failed to recommend candidates for two vacancies on the appellate court. The NGO Freedom Under Law took the JSC to court over this issue. In an out-of-court settlement, the JSC agreed to re-run the interviews.
The SCA plays a crucial role in our court system. As a generalist appellate court, it hears appeals from all high courts across the country. It plays a supervisory role over the development of the law, providing crucial clarity and guidance to all courts below.
The SCA: The best performing court in the country
The SCA plays a crucial role in our court system. As a generalist appellate court, it hears appeals from all high courts across the country. It plays a supervisory role over the development of the law, providing crucial clarity and guidance to all courts below. Just last week, the SCA clarified the rules for the complex concept of ‘pure economic loss’ in the law of delict. It reversed a decision of the Johannesburg High Court holding Old Mutual liable for a R1,7 billion loss to victims of the Fidentia scandal.
Despite its challenges, the SCA is still the best performing court in the country. According to the Judiciary Annual Report 2021/22, the SCA exceeded its 80% target of finalised cases, and has held this record for the last five years. On average, the SCA still delivers its judgments within a month or two of the hearing. However, there are rising concerns about a few exceptions where the SCA has taken months to delivery their judgments. There have also been concerns raised about the general quality of its judgments. The JSC therefore has its work cut out in selecting judges to address these concerns.
Unnecessary additional SCA interviews
While the JSC is scheduled to fill only three vacancies on Monday, on 14 May it sent a call for nominations for three more vacancies it will need to fill by October 2024. In our view, there is nothing in the law that prevents the JSC from filling these three additional vacancies at Monday’s sitting.
While the JSC’s written rules of procedure require that it go through a formal process of shortlisting and interviewing, the rules still allow the JSC to depart from that procedure on good cause shown, and there are compelling reasons why it must do so this time.
Firstly, several of the candidates to be interviewed on Monday have previously been interviewed, and it would save tremendous time, money, and effort to make those appointments without additional interviews.
Secondly, the October 2024 sitting will be the biggest post-pandemic: there are 26 vacancies to be filled. In April 2021, when there were 25 vacancies, the JSC took two weeks to interview 88 candidates. If the candidate list can be trimmed by making the SCA appointments now, there is no reason why the JSC should not do so.
Candidates up for interview
Five of the candidates who were interviewed in the October 2023 session are back: Eastern Cape High Court Judges John Smith and Nozuko Mjali, KwaZulu-Natal High Court Judge Mokgere Masipa, and Gauteng Judges Thina Siwendu and David Unterhalter. Judges Elizabeth Baartman (WC), Piet Koen (KZN), and Phillip Coppin (GP) were last before the JSC some years ago, while Johannesburg Judges Raylene Keightley and Leonie Windell (GP) are newcomers.
All 10 candidates are experienced, senior judges of the High Court. They capture the full diversity of South Africa, on regional, racial and gender metrics. The JSC will have a tough job selecting the final three from the list.
In its questionnaire for candidates the JSC asks candidates to indicate their years they have served as permanent judge, the number of their judgments that have been overturned on appeal, and the number of ‘reported’ judgments (high quality judgments which law editors regard as high quality and published in the official law reports for their development of the law. Distinct from judgments published online without an editorial process).
Although he has the least number of years as a permanent judge, Unterhalter leads the pack with 18 reported judgments, and A judge since 2010 (including an appellate judge in the Labour Appeal Court (LAC) since 2014), Coppin has 17 reported judgments and has been overturned on appeal only six times. A former commercial attorney and judge since 2017, Siwendu has 15 reported judgments, with only five judgments overturned on appeal, and has acted at both the SCA and the Competition Appeal Court.
A judge since 2010, with 12 reported judgments and only four judgments overturned on appeal, Smith has acted at both the SCA and LAC. A former law professor, Keightley has been a judge since 2016, with 15 reported judgments and only seven judgments overturned on appeal. Masipa has been a judge since 2016, with seven reported judgments, and has been overturned on appeal only twice. Koen has nine reported judgments, served seven terms acting on the SCA, and has been overturned nine times in the 18 years he’s been a judge.
A judge since 2013, Windell has five reported judgments, and only five overturned on appeal. With 15 years’ experience as a judge, including six terms acting on the SCA, Baartman has two reported judgments and has been overturned on appeal six times. Mjali has 14 years’ experience as a judge, has a single reported judgment and has been overturned twice.
A need for some urgency
The task of selecting the very best judges for the SCA could not be more urgent.
The task of selecting the very best judges for the SCA could not be more urgent. Over the last 10 years, through natural attrition, including several promotions, retirements and two deaths, the SCA has lost over 240 years of appellate judicial experience. In the last five years alone, over 18 of the 25 SCA judges have been replaced. With the retirement of Justice Xola Petse in July, only two remaining judges will have more than a decade’s experience on the SCA.
JSC Interview for the position of Deputy President of the SCA and Chief Justice
In addition to the SCA interviews on Monday, the JSC will also interview a candidate for Deputy President of the SCA; Justice Dumisani Zondi, on Tuesday.
The current Electoral Court chairperson, Zondi has been a judge since 2007 and at the SCA since 2014. He is currently the fourth in the SCA’s pecking order. As President Ramaphosa’s sole nominee, section 174(3) of the Constitution requires the JSC to only advise the president on Zondi’s suitability, and that advice is not binding. The General Council of the Bar, which represents the majority of practising advocates has asked the JSC to raise with Zondi questions on his intellectual leadership, his commitment to defending the judiciary, and his ability to administer the second highest court in the land. (Read more here.)
Speaking of highest court in the land, later on Tuesday the JSC will interview the sole candidate for Chief Justice: Deputy Chief Justice Mandisa Maya. With current Chief Justice Raymond Zondo retiring in August 2024 after a mandatory 12-year term, Ramaphosa has nominated Maya as his successor.
CLICK HERE TO Read a preview of the Chief Justice interview here
The JSC’s sitting this week comes at a poignant moment: celebrating 30 years of democracy, an election fraught with uncertainty, and a judiciary at a point of transition. Commissioners on the JSC need to look beyond their petty self-interests and take decisions that will yield a stronger, capable and independent judiciary for the next decade – and well into the future. Otherwise, we may never see the next 30 years of democracy.
Mbekezeli is research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at the UCT Law Faculty that monitors judicial appointments, judicial conduct and the governance of the South African judiciary.
Judges Matter will be following the JSC interviews. Keep up with the updates on www.judgesmatter.co.za and follow Judges Matter on X/Twitter ( @WhyJudgesMatter ) on LinkedIn and Facebook.
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