Judges Matter and DGRU submission to the JSC: Great progress, but more needs to be done

Twice-annually, Judges Matter – as part of the Democratic Governance and Rights Unit (DGRU), a research unit at the University of Cape Town – submits its assessment of the Judicial Service Commission (JSC) on judicial appointments and judicial misconduct cases. These submissions are made shortly before the JSC sits in April and October.

Enhancing Judicial Appointments: A Critical Review of JSC’s Progress

The October 2023 submission reflects on the progress made by the JSC and suggests areas for improvement. The submission aims to provide constructive feedback and suggestions to further enhance the transparency, fairness and effectiveness of the JSC’s judicial appointment process in South Africa.

You can download the full submission here. 

Positive impact of new criteria and recommendations for improvement

The JSC made significant strides by adopting revised criteria and question guidelines for judicial appointments in April 2023. These criteria provide clear guidance for the JSC and interviewers, helping ensure rigorous yet respectful evaluations of candidates. Judges Matter and DGRU commends the JSC for these positive changes and urges continued improvement.

Read more here: https://www.judgesmatter.co.za/opinions/analysis-the-jscs-new-criteria-and-the-prospects-for-the-success-of-its-reform-agenda/]

Criteria applied in the April 2023 JSC interviews

The April 2023 interviews marked a notable improvement in the thoroughness of questioning. The questions focused on candidates’ legal expertise, understanding of the constitution and judicial track record. This approach aligns with the essence of what a judicial interview should be. Respected legal journalist; Franny Rabkin also praised the JSC for conducting respectful yet tough interviews, dispelling misconceptions about transformation efforts.

Read more here: https://www.timeslive.co.za/sunday-times/opinion-and-analysis/insight/2023-04-30-judging-the-judges-is-a-smoother-task-now/

Criteria applied in shortlisting for October 2023

Judges Matter and DGRU also commends the JSC’s application of criteria during the shortlisting process, in line with our submission from November 2022. The calibre of shortlisted candidates for the October 2023 interviews reflects a marked improvement in the selection, and a commitment to higher standards (e.g. in some courts, 40% of those who applied were not shortlisted, and even those who were previously interviewed were not shortlisted this time).

Further reading: https://www.judgesmatter.co.za/opinions/judges-matter-dgru-submission-on-criteria-and-guidelines-for-judicial-appointment-in-south-africa/

Supplements to existing criteria

“In our November 2022 submission on the draft criteria we suggested the JSC include additional questions on ethics and integrity. These questions test whether the candidate is fit and proper for judicial office.  Similar questions are already asked in the questionnaire and interviews for magistrates.  We repeat our proposal that the JSC supplement the existing questionnaire and criteria with some of these questions. Importantly, we propose these additional questions not to embarrass the candidates. We simply recognise the limitations of the current questionnaire, which asks relatively vague and general questions. The questionnaire asks whether there are ‘any circumstances’ that might cause embarrassment, or ‘any relevant matter’ to be brought to the attention of the JSC. This does not go far enough.”

Judges Matter and DGRU recommends questions such as whether candidates have faced disciplinary proceedings, or have court orders against relating to maintenance, insolvency, or related issues. These questions aim to ensure that candidates fully disclose any issues related to their suitability for judicial office. This proactive approach helps prevent potential challenges to the integrity of the judicial appointment process.

Code of conduct for commissioners

While the adoption of a clear criteria document is an important step to inspire public confidence in the judicial appointment process, this step is unlikely to achieve its aims without an enforcement mechanism. Judges Matter and the DGRU therefore propose that, in addition to criteria and the questioning guidelines, the JSC adopt a code of conduct for commissioners. This code would outline expected behaviours, uphold the Constitution’s principles, and provide an enforcement mechanism such as a recall provision.

Failure to advertise the Constitutional Court vacancy

For the April 2023 sitting, the JSC did not interview any candidates for the Constitutional Court. This was due to the JSC’s failure to attract the minimum of four candidates to interview. This was the second successive time that this has occurred, after the JSC similarly failed to attract the minimum number of candidates in October 2022.

It is worth noting that, by April 2024, the Constitutional Court would have operated without its full complement of 11 permanent judges for nearly a decade (since 2016). We recommend that the JSC reflect on why candidates are reluctant to make themselves available for appointment to what should be the pinnacle of a legal career in South Africa.

The JSC’s failure to attract candidates for the Constitutional Court vacancy raises concerns about public confidence in the judicial appointment process. The decision not to advertise this vacancy until April 2024 also raises questions about compliance with constitutional obligations. Judges Matter and the DGRU recommends the JSC enforce the protocols for declaring and advertising court vacancies to prevent such situations.

Women in Judicial Leadership

While progress has been made in gender transformation within the judiciary and as at 2023, over 40% of South Africa’s judiciary is comprised of women, there is still a requirement to highlight the need for more women in top judicial leadership positions. A diverse leadership better represents the judiciary’s membership and can lead to more comprehensive policy decisions, particularly within the Heads of Court forum. Judges Matter and the DGRU note that in 2023 the JSC appointed three women judges to leadership positions in the judiciary, but urge the JSC to take a proactive stance to recruiting women to the 16 other positions.

JSC’s strategic “Human Resources” Function

As the body responsible for the appointment function, the JSC plays a crucial role in determining the shape, size and competence of South Africa’s judiciary. In this regard, the JSC needs to be strategic in the judicial appointments it recommends at each round of interviews. Put simply, the JSC needs to take seriously its ‘human resources’ function.

Judges Matter and the DGRU recommends that the JSC more diligently focus on aligning candidates’ skills with the needs of specific courts. Furthermore, DGRU suggests the JSC closely monitor judges’ ages (relative to retirement) and skillsets to ensure a balanced, dynamic and competent judiciary.

Handling judicial misconduct complaints

While issues of judicial misconduct do not strictly relate to the JSC’s judicial appointment function, Judges Matter and the DGRU raises them in this submission because these issues are often dealt with a JSC sittings in April and October each year. Delays and issues with quorum during the Small JSC meetings hinder the JSC’s effectiveness in addressing judicial misconduct cases. DGRU encourages the JSC to invest more attention and resources to dealing with judicial misconduct cases efficiently.

Conclusion

The DGRU and Judges Matter commends the JSC for the important progress in relation to adoption and implementation of judicial appointment criteria. We also applaud the appointment of several women to judicial leadership positions. Nevertheless we also urge the JSC to adopt a code of conduct for commissioners; to supplement questions on ethics and integrity; to provide transparency in relation to the non-advertisement of superior court vacancies; and to seriously consider the JSC’s strategic ‘HR function’ in relation to judicial appointments. We also urge the JSC to capacitate its judicial misconduct processes. All of this will sustain and entrench the important successes that have been gained so far.

Download the full October 2023 DGRU submission here:

The JSC’s October 2023 sitting is scheduled for the 2 to 6 October 2023 from 12:00 on the first day and 09:00 on subsequent days.

Judges Matter will provide coverage of the interviews on our social media channels
Follow @WhyJudgesMatter and #JSCinterviews on Twitter OR watch the interviews live on our website

See the full list of candidates here: https://www.judgesmatter.co.za/jsc-interviews/jsc-candidates-october-2023/