October JSC interviews set to shape South Africa’s Judiciary amid political tensions

Amid political controversy, the Judicial Service Commission is set to meet (from 7 – 16 October) for a marathon round of interviews. With 54 candidates for 21 vacancies at the Supreme Court of Appeal and various high court divisions across South Africa, this will be the largest round of interviews since the April 2021 Covid round of 88 candidates. Besides the sheer volume of the work set out for the JSC, there are several dynamics at play that will have significant impact on the course of our judiciary for the coming years.

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In some ways, this is a ‘new’ JSC. How so? It will be the first JSC chaired by the new Chief Justice Mandisa Maya. Although she was previously a member of the JSC from 2017 to 2022 and has chaired the JSC on several occasions in retired Chief Justice Raymond Zondo’s stead, it will be the first time she is firmly on the saddle in her own right.

Maya’s previous chairing of the JSC (in October 2023 and earlier) commanded the respect and cooperation of all commissioners, leading to efficient and effective interviews (which ended way before midnight, unlike previous sessions).

However, this new JSC might be a tricky horse to ride.

New JSC members from Parliament

After the May elections, Parliament replaced seven of its 10 representatives on the JSC, which make up a third of the 23-member body. Only the ANC’s Kenny Mmoiemang, the Democratic Alliance’s Glynnis Breytenbach, and Economic Freedom Fighters leader Julius Malema are returning.

National Council of Provinces chairperson Refilwe Mtsweni-Thipane is also an old hand on the JSC; in her previous role as premier of Mpumalanga, she regularly attended her province’s interviews and asked the tough questions.  Will she still be as effective in her new, permanent role as commissioner?

Another JSC member trading seats is former judge president and now Mkhonto weSizwe (MK) Party leader John Hlophe, whose eligibility on the JSC is currently subject to court proceedings. After the DA won an interim interdict barring his participation pending the full review of Parliament’s decision to designating Hlophe as a member of the JSC, the JSC had to urgently meet to decide on MK Party’s request for a postponement. This would prove to be Maya’s first test as chair of the JSC.

She passed the test as, hours after the request came, she convened an urgent meeting of the JSC which, by a vote of 20 to one, resolved to decline the postponement and forge ahead with the interviews. Undeterred, the MK sought an interdict to stop the interviews.

The speed at which the JSC convened – and the near unanimity of its decision – bodes well for the upcoming interviews and Maya’s chairing of them. This will be vital as the JSC needs to restore its credibility within the judiciary, the legal community, and the broader public.

For the first time since 1994, the parliamentary delegation to the JSC is not dominated by the ANC, which has only five of 10 of the seats (DA has ten, and ActionSA, EFF and MK have one each).

The MK Party argues that the interdict against Hlophe weakens the opposition voice on the JSC, in violation of section 178(1)(h) of the Constitution, which requires that three of the six MPs from the National Assembly be from opposition parties. The JSC dismissed this argument, and it will now be decided in court, as the MK Party persists in an urgent bid to interdict the interviews.

Several of the new MPs on the JSC are trained lawyers – including the ANC’s Mwelo Nonkonyane, Fasiha Hassan, Soviet Lekganyane and the DA’s Nicholas Gotsel. Others are senior politicians with  a proven commitment to constitutionalism and protecting democratic institutions, including ActionSA’s Athol Trollip and the ANC’s Mtsweni-Thipane.

MPs on the JSC need to take their roles seriously

It is time for MPs to set aside their narrow party-political interests and assert the interests of ordinary South Africans who want the best quality judges serving in an independent and effective judiciary.”

While there are growing calls for the reduction or removal of parliamentarians on the JSC, it is clear that the drafters of the Constitution envisioned MPs as public representatives, playing a crucial role in representing the broader interests of court users who need access to justice. They also provide democratic legitimacy to the judicial appointment process.

It is time for MPs to set aside their narrow party-political interests and assert the interests of ordinary South Africans who want the best quality judges serving in an independent and effective judiciary.

The JSC needs to be seen to be pushing ahead with the reforms initiated under Zondo, including applying the written criteria the JSC adopted in 2023, and working on a code of conduct for commissioners.

This is vitally important, as the JSC’s antics are causing harm to the courts, particularly the Constitutional Court. Top candidates refuse to risk the humiliation that has become the JSC interviews, where narrow political agendas are nakedly pursued instead of a fair and competent assessment of suitability for judicial appointment.

South Africa’s top court has now operated without a full complement of permanent judges since 2016.”

There will be no interviews for the apex court in this round, as the JSC, after twice advertising, has failed to attract the bare minimum  of four candidates to interview. South Africa’s top court has now operated without a full complement of permanent judges since 2016.

Need to fill the experience gap at SCA

There are six candidates shortlisted for three vacancies on the Supreme Court of Appeal. Five of the six are returning after unsuccessful interviews in April 2024, while KZN High Court Judge Mahendra Chetty will be appearing for the first time. Through retirements, promotions, and two deaths, the SCA has lost more than 200 years of judicial appellate experience. While the SCA remains the country’s best-performing court, serious concerns are starting to emerge about the quality of its jurisprudence. This year, the SCA issued a disturbing series of conflicting judgments on the same point (the test for the appealability of interim orders). The JSC is therefore under serious pressure to select the most experienced candidates to fill the experience gap.

Judicial leadership positions

Several leadership positions also need to be filled.

Deputy Judge President Edwin Molahlehi is the sole candidate for Judge President of the Labour Court, which he has been temporarily holding since February 2024.

In contrast, seven candidates are vying for Judge President of the Western Cape High Court, including current Acting Judge President Patricia Goliath, who filed a judicial misconduct complaint against Hlophe.

It is unusual for there to be so many candidates for a leadership position in the judiciary, as judges often coalesce around one or two trusted candidates. The fact that this is not the case in Western Cape High Court speaks to the deep divisions in the court, largely fomented by impeached Judge President Hlophe. At the time of his impeachment, 10 Western Cape judges had filed a judicial misconduct complaint against a fellow judge. Hlophe’s lawyer had also filed a complaint against several WCHC judges. Hlophe himself was facing a tribunal investigation for assaulting another judge and a judicial conduct inquiry over using foul language against an advocate. The new Judge President will therefore need to rebuild trust, collegiality, and cohesion among judges and restore the faith of the legal community and the wider public. Chief Justice Maya would also need to formulate an intervention plan.

Deputy Judge President positions

Several interviews will also take place for Deputy Judge President (DJP), the second in command in the provincial high court divisions.

Three candidates are shortlisted for the inaugural DJP of the Land Court. Gauteng Judge Shanaaz Mia leads the pack in her decade’s experience as a judge. Fellow Gauteng Judge Susannah  Cowen is credited with leading several initiatives to improve the court’s functioning, including rolling out the court online project and finalising old cases lying dormant for years. KwaZulu-Natal Judge Thomas Ncube – a former rural magistrate and the only male candidate – closes the list of fierce contestants.

Three candidates are running for KwaZulu-Natal DJP, including Judge Nkosinathi Chili, the current presiding judge in the long-running Zuma corruption trial. He recently dismissed Zuma’s latest bid to remove prosecutor Billy Downer. With a decade of judicial experience, Judge Zaba Nkosi is the most experienced of the three. The only woman candidate, Judge Jacqueline Henriques will likely face tough questions from the JSC over her delayed judgments (including one that took her two years to deliver). The DJP helps the Durban node of the KZN High Court, which is currently undergoing renovations and is scheduled to reopen in 2025.

Two candidates are shortlisted for Mpumalanga DJP, based in the Middleburg node. Judge Takalani Ratshibvumo spent two decades as a magistrate before his elevation to the high court in July 2021 and has served as acting DJP since August 2023. Also a former magistrate from 2004 to 2013, Judge Thando Mankge practiced as an advocate in Middleburg until her appointment as a judge in 2021. Although she has the backing of retired Mpumalanga Judge President Francis Legodi, her lack of experience acting in a judicial leadership role might be a disadvantage.

Vacancies at high court divisions:  Gauteng, Mpumalanga, Limpopo, Western Cape

Several high court divisions have record numbers of vacancies to fill due to the retirement or promotion of several senior judges. This leaves serious gaps in judicial experience and capacity, which the JSC desperately needs to fill.

A whopping 10 candidates are shortlisted for six vacancies in the Gauteng High Court. The unusual shortlist experienced Labour Court Judge Graham Moshoana, and law professors Elmien du Plessis and Moss Phooko (who serves part-time as an electoral court judge).

Another 10 candidates are shortlisted for four vacancies in the Western Cape High Court, including senior regional magistrates Mas-udah Pangaker, Pearl Andrews, and Nontuthuzelo Ralarala, as well as seasoned advocate and former law lecturer Johan de Waal SC.

Eight candidates are shortlisted for six vacancies in the KwaZulu-Natal High Court, including seasoned advocates Siphokazi Jikela SC, Vusi Msiwa SC, Murray Pitman and Garth Harisson, all of whom have acted as judges in KZN.

Limpopo closes off the list with three candidates for a single vacancy, including senior regional magistrate Jane Ngobeni, and advocate Lesibana Ledwana, who returns to the JSC for a third try.

The JSC will meet on the first day of the interview session to set the tone for the rest of the October round. Many eyes will be on whether the JSC will uphold its own criteria and standards and deliver suitable candidates for the largest crop of judicial appointments for our courts. The judiciary’s reputation – and the rule of law – is on the line.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter.

A version of this article is published in the Mail & Guardian (4 October 2024)