JSC MAY 2024 REVIEW: CHIEF JUSTICE AND SUPREME COURT OF APPEAL INTERVIEWS

Following a full day of interviews for the Supreme Court of Appeal judges on Monday, 20 May, the Judicial Service Commission (JSC) proceeded to interview Deputy Chief Justice Mandisa Maya, as the sole candidate for Chief Justice, and Justice Dumisani Zondi as the next deputy president of the Supreme Court of Appeal.

While both sets of interviews covered different aspects of the judicial hierarchy, the JSC’s decisions undoubtedly affect the future of the judiciary.

While both sets of interviews covered different aspects of the judicial hierarchy, the JSC’s decisions undoubtedly affect the future of the judiciary.

An SCA rerun by another name?

In October 2023, the JSC interviewed 11 candidates to fill four vacancies at the SCA. However, after two days of interviews, the JSC resolved to only recommend two candidates and left the other two vacancies open. This resolution was challenged in court by NGO Freedom Under Law (FUL), which asked the court to set it aside on the grounds of legal irrationality.

After negotiations, the JSC and FUL agreed to an out-of-court settlement in terms of which the JSC would rerun the SCA interview process to fill the two remaining vacancies.

However, instead of simply interviewing the exact five candidates previously interviewed, the JSC advertised for an additional vacancy and opened the nominations to more candidates. In the end, the JSC had a shortlist of 10 candidates for three vacancies.

Similar to previous interview rounds, the JSC Secretariat scheduled 40-minute-long interviews, but this was more aspirational than a strict deadline. This was evident in all the interviews running over the scheduled time limit.

In a research paper, Judges Matter published in 2021, we found that the length of interviews impacts the quality of the questions and, more importantly, the prospects of each candidate. Roughly, we found that the longer the interviews, the worse the candidate’s prospects become. Indeed, the longer the interviews go past the 40-minute mark, the less focused the interview becomes on the issues to do with a candidate’s suitability.

Part of the rationale for having written criteria for the interviews is to focus the JSC’s attention on only those issues that pertain to the candidate’s fitness for judicial office within the constraints of limited time. While not all interviews will fit within the 40 minutes allocated, the JSC should aim to cover all the aspects of the criteria which could give the commission confidence that the candidate is fit for judicial office. This is particularly so when the JSC is interviewing candidates for higher judicial office in the powerful appellate courts (SCA and Con Court).

The third candidate was Johannesburg Judge Raylene Keightley, a first-time interviewee for the SCA, who had a tough but pretty smooth interview. The next two candidates were KZN Judges Piet Koen and Mokgere Masipa, both coming back to the JSC after their unsuccessful SCA interviews in 2022 and 2023, respectively. While Koen had the advantage of several more written judgments and an additional acting stint since his previous interview in 2021, Masipa had only an additional acting stint in the six months since her last interview. Both judges had a tough reception with the JSC, but Masipa faced an additional grilling over delays in her judgments, which was read as uncollegial.

Eastern Cape judges Gloria Mjali and John Smith were up next. Both had been interviewed in the October 2023 round. Mjali faced a tough grilling from then-acting SCA President Justice Xola Petse over her relative paucity of judgments and recent acting stint. Smith also faced a tough grilling yet in October received the votes needed for appointment in the first round of voting but lost them in the second round (there were two rounds of voting). In the interim, Smith acquired appellate experience in the Labour Appeal Court.

Last to be interviewed were Johannesburg Judges Thina Siwendu, David Unterhalter, and Leonie Windell. Siwendu’s interview – like all her interviews – went by like a breeze. She answered all questions with confidence and hardly faced a sticky point. Like Smith, Siwendu had gotten sufficient votes in the first round of voting in October 2023 but could not get enough for the second round – hence she was ultimately unsuccessful and had to return.

Unterhalter was coming to the JSC for a record fourth time and had failed to garner sufficient votes in the October 2023 round. His interview went by relatively smoothly, with a key focus on his legal acumen, judicial experience, and whopping 55 reported judgments. The awkward questions on his involvement in the SA Jewish Board of Deputies – which some commentators had anticipated would dominate the interview –  did not materialise. Windell – a first-timer – was tripped up by questions relating to how she completed the judicial questionnaire, which Chief Justice Zondo felt did not showcase her judicial experience and readiness for an appellate appointment.

In the end, the JSC faced a tough choice – selecting only three names from a list of highly experienced judges, most of whom would be excellent appointments. An additional factor was that the SCA has lost over 200 years of appellate judicial experience through natural attrition such as death, promotion, and retirement. So, in addition to excellence, the JSC also had to consider experience, race, gender, and regional dynamics.

Ultimately, the JSC seems to have taken the easy way out: they appointed three judges who were not far from retirement and would therefore give way to the next crop of candidates.

Ultimately, the JSC seems to have taken the easy way out: they appointed three judges who were not far from retirement and would therefore give way to the next crop of candidates. The successful candidates were therefore Smith (retiring in 2028), Keightley (retiring in 2031), and Unterhalter (retiring in 2028). These appointments would most likely be welcomed by the legal community while giving the JSC an opportunity to try out younger judges in subsequent rounds.

Indeed, the week after the interviews, the JSC announced a fresh call for nominations for three more vacancies on the SCA bench. It would be unsurprising if some of the judges left out in the May 2024 round return for another try at the appellate court.

A deputy head of the SCA

Alongside Deputy Chief Justice Maya’s nomination, President Ramaphosa also nominated Justice Dumisani Zondi for deputy president of the SCA.

In addition to his role as the third most senior judge of the SCA, Justice Zondi is a longtime member of the Judicial Conduct Committee (JCC). This is the body responsible for adjudicating complaints of judicial misconduct. He also serves as the judge president of the Electoral Court, which made the timing of his interview awkward, coming just a week before the 2024 general elections.

As Zondi is the sole candidate for the position, he is presumed to be the nominee. The JSC therefore needed to test his suitability and question him on his vision. After the introductory questions, the interview cut straight to the chase. Justice Minister Ronald Lamola asked, “How could you get it so wrong?” referring to Zondi’s judgment on former president Jacob Zuma’s candidacy for election to parliament, which was overturned by the Constitutional Court. After Chief Justice Zondo’s intervention, Zondi explained that it was a question of interpretation and accepted that judges on appeal see things differently, pushing back on the proposition that he had gotten it wrong.

The rest of the interview seemed to proceed much smoother. Only at the tail end did Commissioner Ngcukaitobi raise a concern about Zondi’s relative paucity of judgments and whether this would pose a challenge to him providing intellectual leadership to the Court.

Once appointed, Zondi will soon be one of only two judges with a decade’s experience or more at the SCA. This poses a serious threat to the SCA’s viability as an appellate court, able to guide all other courts below on complex questions of law.

The presumed Chief Justice

With current Chief Justice Raymond Zondo retiring in August 2024 after a mandatory 12-year term, President Ramaphosa has nominated Maya as his sole nominee for Zondo’s successor. Therefore, the JSC’s role was less about recommending a specific candidate and more about testing Maya’s suitability for appointment, including teasing out elements of her vision for the judiciary.

After the usual pleasantries at the start of the interview, Zondo turned it over to Maya to cast her vision for the judiciary. Maya started by explaining how she underestimated the work of Chief Justice, but through her two years as deputy, she had a greater appreciation and (jokingly) wouldn’t want the job anymore. She then dived into her vision, which recapped many of the resolutions taken at the Judges Conference in December, including the demand for a single judiciary incorporating the lower and superior courts, giving judicial officers a great say in the running of the courts, and improving the working conditions (including remuneration of judicial officers).

Despite hitting all the right notes, Maya’s delivery was lackluster at best. This was hardly surprising as she had had a gruelling few days…

Despite hitting all the right notes, Maya’s delivery was lackluster at best. This was hardly surprising as she had had a gruelling few days, including presiding over an urgent appeal by the Electoral Commission in a case involving former president Jacob Zuma’s eligibility to stand for election a week later; presiding over the late retired Justice Yvonne Mokgoro’s funeral service, and opening the revamped Justice College; all in a space of seven days!

The interview lasted for six hours, which was much longer than many had anticipated, considering she interviewed for the top job just two years prior. Ultimately, the JSC recommended Maya for appointment.

It is unsurprising that the JSC’s May session was the shortest in recent times. This is because it came just a week before a contentious election, as evidenced by only a few of the JSC’s members attending in person. Nevertheless, the decisions it has taken on the appointment of judges are likely to affect the judiciary for the next decade.