Preview of the JSC October 2023

WILL THE JSC MAINTAIN MOMENTUM ON JUDICIAL APPOINTMENTS AND FINALLY DEAL WITH JUDICIAL MISCONDUCT?

This week, the Judicial Service Commission will sit for its biannual hearings to interview candidates seeking appointment as judges or promotion to higher courts. From Monday (2 October 2023) through Friday, 34 candidates will be interviewed for 20 vacancies at the Supreme Court of Appeal, the Labour and Labour Appeal Courts, the Electoral Court, several high court divisions including Gauteng, KwaZulu-Natal and Limpopo.

For several years, the JSC has come under severe criticism over its chaotic handling of judicial interviews. Previous interviews have descended into political mudslinging, and attacks on candidates, instead of a scrutiny of their judicial and legal track records.

However, in the last two years, the JSC has taken some strides in turning this situation around. At its April sitting this year, the JSC adopted written criteria for judicial appointments. The new, substantially updated criteria clearly set out the qualities the JSC seeks in judicial candidates, including legal expertise, court practice, integrity and diligence.

The criteria also take a broad view of transformation, considering a candidates’ promotion of historically marginalised individuals in the legal profession, and implementation of the constitution’s founding values.

Importantly, the new criteria include questioning guidelines for commissioners, and significant power to the Chief Justice to overrule irrelevant questions.

Thanks to these new criteria, the April 2023 interviews were much more respectful, dignified. The JSC’s keen focus on candidates’ legal skills, experience and judicial philosophy made the interviews the most robust and rigorous in several years.

It remains to be seen if the JSC will maintain this momentum. There are already positive signs, seen through the impressive shortlist drawn up using the new criteria. Five of the seven candidates on the Gauteng High Court shortlist are senior counsel, one of whom a Rhodes Scholar with degrees from Oxford and Stanford universities. Another candidate is already a labour court judge. For the KwaZulu-Natal high court, 60% of the candidates who applied did not make the shortlist, including some of those who had previously interviewed. This speaks to more rigorous selection.

A record 11 candidates are shortlisted for four vacancies on the Supreme Court of Appeal. The SCA hears the vast majority of appeals from the high courts and must provide guidance to them on the law. Last year, the SCA ordered Coronation Fund Managers to pay a R700 million tax bill, wiping 11% off its share price, and underscoring the court’s importance.

According to the Judiciary Annual Report, the SCA is still the best performing superior court, exceeding its 80% target of finalised cases in 2021/22. The SCA is also more diverse, with 73% of its judges being black, and 11 of 23 judges being women. However, administrative challenges have dented its performance. Through retirements, a death and promotions in the last five years, the SCA has lost about 201 years of appellate experience. The JSC is therefore under some pressure to bolster that experience in key areas including commercial law, delict, administrative law, and specialised fields like tax and intellectual property law.

Luckily, several of the candidates have decades of legal experience as judges and legal practitioners. Gauteng High Court Judges Fayeeza Kathree-Setiloane, Thina Siwendu, and David Unterhalter have a wealth of commercial law experience between them and were part of the group that re-established the Commercial Court in Johannesburg.

Free State Judge Johannes Daffue’s delict textbook, Corbett & Honey’s Quantum of Damages is the authority in the field. Northern Cape Judge Mmathebe Phatshoane taught commercial and labour law at the University of the Free State while running one of the largest attorneys’ groups in the country. Pretoria Judge Nelisa Mali holds LLM degree in tax and was a senior manager at the South African Revenue Service, a tax prosecutor and a tax attorney.

With the 2024 elections around the corner, the JSC is also under pressure to fill a longstanding judge vacancy at the Electoral Court. Hardworking Johannesburg Judge Leicester Adams is the sole candidate shortlisted.

The Labour Court will fill three judicial vacancies at its Durban, Gqeberha and Johannesburg nodes. The Labour Appeal Court will fill four vacancies. The JSC will also finally appoint a Deputy Judge President for the Labour and Labour Appeal Court after a seven-year vacancy. Gauteng High Court Judge Edwin Molahlehi – who previously served a decade in the Labour Court – is the only candidate shortlisted.

The JSC will spend half of Monday in a private meeting. Afterwards, we expect the JSC to make crucial announcements on judicial misconduct cases that have been moving rather slowly. The JSC is expected to announce the appointment of Judicial Conduct Tribunals to investigate three serious misconduct cases. The first relates to two suspended Gauteng High Court judges for tardy judgments. The second is to investigate allegations and counter-allegations of assault, bullying and racism against Western Cape High Court Judge President John Hlophe and Deputy Judge President Patricia Goliath. The JSC must also advise President Ramaphosa on the desirability of suspending the DJP (the JP is already on suspension pending impeachment). The third case relates to sexual harassment allegations against Eastern Cape High Court Judge Selby Mbenenge.

Part of the reasons why judicial misconduct complaints take so long to finalise is because the misconduct process is complex and convoluted and lacks human and financial resources. Judges Matter’s longstanding recommendations have been that the JSC needs to streamline its process, allocated more staff to the secretariat, and recruit retired judges to deal with misconduct complaints.

While the JSC has made tremendous progress on improving its processes for judicial appointment, including adopting criteria, it has not done well on misconduct-related issues. No doubt, the JSC’s failures have had a severe impact on the public’s confidence in the judiciary. This week, the spotlight is on the JSC and whether it will be able to maintain good momentum and salvage its own reputation and that of the judiciary.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a civil society watchdog of the judiciary based at the Democratic Governance and Rights Unit at the UCT Law Faculty. Follow this week’s interviews on www.judgesmatter.co.za and on X: @WhyJudgesMatter and #JSCinterviews

A version of this article is published in Business Day (2 October 2023)