Submission on criteria for Judicial appointment in South Africa
1. The Democratic Governance and Rights Unit and Judges Matter hereby submit their input on the draft ‘Summary of Criteria and Questioning Guidelines’ (‘the draft criteria’) issued by the Judicial Service Commission on 27 October 2022.
2. Since we first began monitoring the judicial appointments process in 2009, we have regularly made submissions to the JSC. While most of these submissions have included detailed research reports analysing candidates’ judicial track records, a regular theme of our submissions in recent years has been the need for the JSC to develop more detailed criteria by which to evaluate and select candidates for judicial appointment.
3. We therefore welcome the JSC’s commitment to ensuring that the process of judicial selection and appointment is open and transparent, and that ordinary South Africans understand the process. We also welcome the JSC’s publishing of its criteria and guidelines for questioning.
What follows is our analysis of the draft criteria and guidelines, with suggestions for areas of improvement and fine-tuning.
About the DGRU and Judges Matter
5. The Democratic Governance and Rights Unit (DGRU) is one of Africa’s leading research centres specialising in the area of judicial governance. Based in the Department of Public law at the University of Cape Town, our main focus is on supporting strong, independent judiciaries and providing free access to legal resources in Africa.
6. The mission of the DGRU is to advance social justice and constitutional democracy in Africa by:
6.1. conducting applied and comparative research;
6.2. supporting the development of an independent, accountable and progressive judiciary;
6.3. promoting gender equality and diversity in the judiciary;
6.4. providing free access to law; and enabling scholarship, advocacy and online access to legal information.
7. The DGRU has an interest in ensuring that the judicial branch of government is strengthened, is independent, and has integrity. Our focus is on the judiciary in South Africa but also across Africa. We are recognised as a resource partner of the Southern African Chief Justices’ Forum, the African Network of Constitutional Lawyers, and the Africa Chapter of the International Association of Refugee and Migrant Judges.
More information is available on www.dgru.uct.ac.za.
8. Judges Matter is a project of the DGRU with a dedicated focus on monitoring the South African judiciary. Through applied research and advocacy, Judges Matter monitors the appointment of judges, their discipline for misconduct, and how the judiciary is governed and administered.
More information is available on www.judgesmatter.co.za.
B. PURPOSE OF THIS SUBMISSION
9. Although we acknowledge that section 174 of the Constitution provides the foundational criteria that should guide the JSC in its appointment process, our key recommendation over the years has been that the JSC needs to formulate substantive criteria that go much further. We therefore commend the JSC for undertaking the current process to clearly articulate the criteria it uses in selecting judges to our courts.
10. The purpose of this submission is threefold:
10.1. To provide general comments on key aspects of the criteria
10.2. To provide comments on the question guidelines
10.3. To suggest recommendations for improvement on aspects that were omitted in both (1) and (2).
11. We therefore depart from the understanding that the JSC will supplement its criteria and publish a final version that will be applied from the April 2023 meeting onwards.
C. COMMENTS ON KEY ASPECTS OF CRITERIA
A note on when the criteria should apply
12. To achieve the aims for which they were drawn up, we believe that selection criteria should apply at all the stages of the appointment process, although the degree to which they apply may vary.
13. In our view the judicial appointment process is a single, multi-stage process that may be summarised as follows:
13.1. It starts with the declaration of the vacancy and call for nominations,
13.2. Then comes sifting and shortlisting,
13.3. This is followed by public interviews and deliberations and
13.4. The president making the appointment, and finally,
13.5. The candidate assuming office.
14. At all these stages, criteria should apply, directly or indirectly, in one way or the other. For example, clear criteria inform aspirant judicial candidates what may be expected of them in the nominations process, and therefore apply indirectly. For obvious reasons, criteria must directly apply in the shortlisting, interviewing and deliberations stages. But they may also guide the president’s decision in finalising the appointments, particularly for appointments where the president has a wider discretion. Logically, they may not be directly applicable when it comes to the assumption of office. Although some may argue that a judge must remain suitably qualified through continuous education and obviously be fit and proper, always.
15. In ensuring that criteria are applied fairly and consistently throughout these stages of the appointment process, the finalised criteria document and the judicial questionnaire are essential instruments. They solicit from the candidate all the information necessary for the JSC to assess their suitability for judicial appointment. That means there must be clear alignment between the information requested in the questionnaire, and how that information is considered in the shortlisting, and then tested during the interview stage.
16. For this reason, we would recommend that the judicial questionnaire be revised to more closely align with the criteria document.
17. We believe that a clearer alignment between the draft criteria document the judicial questionnaire is more likely to ensure a rigorous and fair process overall. If properly considered in the shortlisting and interview stages, additional questions of the nature outlined below may also provide a more comprehensive picture of the candidate.
18. We now turn to specific aspects of the criteria, along the framework of questions adopted in paragraph 7 of the draft criteria.
Is the candidate an appropriately qualified person?
19. We agree that the ‘appropriately qualified’ criterion primarily refers to academic and professional qualifications, technical legal skills and experience. We support the draft criteria document’s framing of this requirement.
20. In assessing legal skills and experience, we would urge the JSC to take a comprehensive outlook on what counts as relevant experience and set clear standards. For example, the draft criteria document is silent on how the JSC will assess and weigh quasi-judicial experience, even though it is foreshadowed in the judicial questionnaire.
21. We support the requirement that candidates for specialist courts must have relevant experience in the area. Under this requirement, we would also urge the JSC to assess a candidate’s specialist experience in the context of the needs of a specific court at a particular time. For example, while a candidate with shipping law experience might not be prioritised in the Limpopo Division, such a candidate might need to be prioritised in the Eastern Cape Division for the Gqeberha or East London courts. This must be made clear in the draft criteria document.
22. We similarly support the requirements for candidates for judicial leadership to possess leadership qualities like good interpersonal skills and maturity of judgement. We would add that such candidates must also include a brief vision statement in the judicial questionnaire, which commissioners might interrogate during the interview.
23. While we agree that it is desirable for a candidate to have acted in the court to which they seek appointment, we highlight the caution that it must not be elevated to an essential requirement. This is important. In our observations of the JSC’s practice in recent years, it’s extremely rare for a candidate to be appointed without such acting experience. This naturally disadvantages candidates who have had no such opportunity to act due to the inherent problems with the current system of acting appointments. These problems include the over-reliance on the head of court’s discretion to invite acting appointments, and the opacity in selection criteria, among other problems. We would therefore urge the JSC to take immediate action to remedy these problems and, until they are resolved, to treat acting experience as a non-essential requirement that should be waived in deserving cases.
Is the candidate a fit and proper person?
24. Although this requirement as currently framed in the draft criteria document has some overlap with legal experience, the requirement to be fit and proper broadly relates to an individual’s character. In this regard, we agree with the draft criteria document’s framing and requirements of integrity, scholarship, diligence, trustworthiness and a commitment to the Constitution’s values, among other things.
25. In aligning this requirement with the judicial questionnaire, it is essential that the JSC includes additional questions on ethics and integrity. These include questions on whether there are legal or other proceedings pending against the candidate, and not simply rely on the certificate provided by their professional body.
26. The questionnaire may include additional questions such as:
Financial and Propriety:
- Has any civil judgment been entered against you?
- Is there at present any civil lawsuit pending against you?
- Have you ever been sequestrated, placed under debt review or administration order?
- Are there any insolvency proceedings pending against you?
Ethics and Integrity:
- Have you ever been involved in disciplinary proceedings against you
- Are there any disciplinary proceedings pending against you
- Have you ever appeared in a criminal court as an accused
- Is there at present any criminal charge and/or investigation into alleged criminal activities
Would the candidate’s appointment help to reflect the racial and gender composition of South Africa?
27. We agree with the draft criteria document’s framing of the section 174(2) instruction that the judiciary reflect the racial and gender composition of South Africa as broadly requiring that courts reflect the diversity of experiences of South Africa’s people
28. In order to achieve maximum diversity in our courts, we would urge the JSC to follow a flexible approach. This approach would consider the national demographics of the country alongside the regional demographics and other factors that might affect the unique social context in which the court is situated. This is broadly in line with the principles in Magistrates Commission v Lawrence, among other cases.
29. The draft criteria document’s framing of a candidate’s participation in transformation initiatives in the legal profession and their community aligns with the judicial questionnaire, and we support it.
Would the candidate be independent?
30. We support the draft criteria document’s statement on judicial independence and how the JSC will assess this requirement.
31. In assessing a candidate’s independence, it would be valuable for the JSC to request candidates to articulate a broad theory of adjudication – otherwise called ‘judicial philosophy’. In this regard, commissioners might interrogate a candidate on their broad understanding of constitutional principles and values in the abstract, or possibly their understanding of the constraints of the judicial role in a constitutional democracy. Commissioners may also deduce a candidate’s independent-mindedness from a candidate’s track record of dissenting judgments, or scholarly publications.
32. There are some additional considerations which we believe are important to raise with the JSC in its application of criteria which are not sufficiently covered in the draft criteria document.
33. The first is how the JSC assesses candidates within a broader pool of candidates for a particular position versus assessing individuals based on their own merit. We would urge the JSC to always assess individuals on their own merit in respect of the needs of the court at that time. Here, we would support the head of court briefing commissioners on the needs of the court prior to interviews starting
34. The JSC must be cautious to not appoint weak candidates who are interviewed alongside a weak candidate pool of their peers. The JSC must continue to decline making appointments when there are no candidates who objectively meet the required standards in terms of the criteria.
35. Similarly, we would urge the JSC to eschew a narrow consideration of only candidates from a particular province or region being appointed to specific courts. We fear this might denude those courts of exceptional talent from elsewhere in the country. In this regard, we would urge the JSC to give strong candidates who would not be appointed to a specific court by virtue of stiff competition the option to be considered for another court should they be so willing. This flexible approach would likely ensure a wider pool of strong candidates from which the JSC can draw, and avoid the situation where vacancies are left unfilled while there are suitable candidates available.
COMMENTS ON THE QUESTION GUIDELINES
36. We wish to reiterate that the process of public interviews must generally instil public confidence in the judiciary. It must protect the dignity and reputation of all candidates who present themselves for such important public office. In our view, the public must feel that judicial office is taken seriously, that only the most exceptional people from all backgrounds qualify. Even when someone is not appointed, they must still command the respect and esteem of their peers and the general public. It is therefore essential for commissioners to observe the highest standards of respect and decorum, while being robust yet fair in their questioning of the candidates. This is the context in which we assess the question guidelines.
37. We welcome the question guidelines and their repeated emphasis that questions put to candidates by commissioners must relate to the criteria. This is important.
38. Further, we welcome the question guidelines making clear that the chairperson has a duty to actively enforce the guidelines by exercising a wide discretion on the types of questions they may allow, after hearing the commissioner out.
39. However, we are concerned that there is no enforcement mechanism to deal with commissioners who defy or disregard the chairperson’s rulings, or repeatedly misconduct themselves in any other way. In this regard, we would urge the JSC to develop a clear Code of Conduct for Commissioners, with a mechanism that allows the chairperson, on behalf of the JSC to issue a letter to the constituency that nominated the commissioner to either discipline or recall the errant commissioner.
40. We support the prohibition on questions that force a candidate to give an undertaking of how they would decide a particular case. We would add that commissioners must take care not to ask questions that tend to ‘re-litigate’ their own or others’ cases during the interview, although we do support an interrogation of a candidate’s judicial track record.
41. We also support the requirement that serious disqualifying allegations must be substantiated and put to the candidate prior to their interview, with sufficient opportunity to address the allegation. In this regard, we would urge the Objection Committee to develop more detailed rules or a standard operating procedure on how it receives and deals with objections, and these must be publicly available on the Judiciary website.
42. The DGRU and Judges Matter support the JSC’s important step in articulating criteria to be used in judicial appointments. We also support the question guidelines. We believe that these documents would go some way in improving the fairness and rigour of judicial appointments in South Africa. We have made several suggestions for improvement and would welcome the invitation to expand further on these orally or in writing.
DGRU AND JUDGES MATTER
28 NOVEMBER 2022