Preview of the Judicial Service Commission sitting October 2022

For two weeks beginning on Monday, 3 October, the Judicial Service Commission will hold its usual biannual sitting, where its primary focus will be on interviewing 42 candidates for 20 vacant posts in South Africa’s superior courts.

In this article, we preview the important aspects of the October 2022 JSC sitting.

The Composition of the JSC

There are hardly any changes to the composition of the JSC since its last sitting in June.

Chief Justice Raymond Zondo will serve as chairperson, while the membership of the JSC will fluctuate between 23 and 25, depending on the court. For the Supreme Court of Appeal interviews, there will be 23 members. The premier and judge president of the province will join the 23-member when it interviews High Court posts.

With Justice Mandisa Maya now deputy chief justice, Acting Supreme Court of Appeal President Xola Petse will represent the SCA.

It remains to be seen whether Commissioner Doris Tshepe, who is one of four presidential representatives, will continue to sit on the JSC now that she also heads up the Competition Commission. If she has resigned, it would either mean there is a vacancy in this sitting, or a replacement will be announced shortly before the start of proceedings on Monday.

Criteria for appointment of judges

Following the April 2022 interviews, the JSC announced that following a day of discussion on the commission’s mandate, it re‐adopted the supplementary criteria initially developed in 2010, and that the JSC’s rules committee had been tasked with reviewing the criteria in order to recommend “any amendments to expand and or supplement the criteria.”

We understand that the JSC’s rules committee has drafted a further version of the supplementary criteria, which are being considered by the full JSC. The October 2022 sitting will provide an opportunity for these criteria to be further discussed, and perhaps even implemented.

The October 2022 interviews bring to the fore many of the issues Judges Matter and the DGRU has identified as requiring further development of criteria. As highlighted in the April 2022 DGRU report to the JSC, the 2010 criteria do not distinguish between appointments to different levels of courts (i.e., appeal courts, high courts, specialist courts), nor do they identify any specific criteria for judicial leadership. The vacancies for which candidates will be interviewed in October 2022 include five positions on the Supreme Court of Appeal, and five judicial leadership positions. It is therefore critically important that the JSC develop and apply criteria that address the requirements of these positions, as well as general criteria that would be applicable to all judicial appointments.

The Constitutional Court vacancy

The October JSC interviews were also expected to fill the final seat on the Constitutional Court’s 11-member bench, but this will not be so.

In April 2022, the JSC decided that instead of recommending the well-regarded Judge David Unterhalter, it would leave the vacancy unfilled.

In July, the JSC announced that it had failed to find the bare minimum of four candidates to shortlist, as required by the constitution. A scandal, considering that being a Concourt justice is one of the most prestigious jobs in law. The JSC has itself to blame for this. Because of its chaotic interviews, many potential candidates would rather decline nomination and avoid the humiliation.

The problems at the Supreme Court of Appeal

On Tuesday, 11 candidates will be interviewed for five vacancies on the Supreme Court of Appeal, the country’s second-highest court. Known for its efficient delivery of judgment (often within a month of hearing), the SCA has had its fair share of problems. These include racist and sexist bullying among its judges and an inept administration, so says its most recent president, Justice Maya. Adding to the heap of problems is the rapid turnover of its judges in recent years.

Through retirements, a death, and promotions over the last five years, the SCA lost 17 judges with a combined 171 years of appellate judicial experience. For the third term (August – September 2022), there were more acting than permanent judges, including an acting president and deputy president. This is unprecedented for the SCA, which deals with the largest volume of complex cases in the country, and must provide guidance on the law for other courts.

Fortunately, all candidates on the shortlist have significant judicial experience, including having acted in the SCA. The highest, Pietermaritzburg Judge Piet Koen has 16 years, while the lowest, Pretoria Judge Daisy Molefe has nine years on the bench, which is still significant. In stabilising the SCA, JSC’s task will be to carefully assess the needs of the court and select those judges who will bring the necessary experience and expertise, and may possibly usher in the birth of a new, diverse and stronger SCA.

Leadership positions to be filled

Later next week the JSC will make several appointments to leadership positions in the judiciary.

Johannesburg Judge Norman Manoim is the sole candidate for judge president of the Competition Appeal Court. A shoo-in for the job, he spent 19 years as head of the Competition Tribunal and is well-regarded in competition law circles.

Supreme Court of Appeal Judges Dumisani Zondi and Baratang Mocumie are in a fierce competition to head up the Electoral Court. With the 2024 elections fast approaching, they will need to hit the ground running. Mocumie has a slight advantage as the Electoral Court has never had a woman as judge president.

On Wednesday, three candidates will interview for judge president of the Limpopo High Court: two Phatudis (Judge Arnoldus Mauritius Legodi Phatudi and Judge Moletje George Phatudi), one Judge Maake Kganyago; all men. This might not matter much, considering that Deputy Judge President Matsaro Semenya is a woman. However, the JSC will weigh this factor considering the pressure to diversify the leadership echelon of the judiciary.

On Friday, three candidates will interview for the judge president of the KwaZulu-Natal High Court position. In April, current acting Judge President Mjabuliseni Madondo was the sole candidate but was unsuccessful when commissioners grilled him on his self-published book that many commissioners believed was homophobic. He’s now joined in the race by Judge Esther Steyn – a former UCT Law academic – and Judge Thoba Poyo-Dlwati, the first woman president of the KZN law society. Madondo beats both on judicial experience (having recently acted in the Constitutional Court) but will retire in November 2023 a mere 11 months after his appointment, a gamble the JSC may be unwilling to take.

Women in judicial leadership

With Justice Maya’s departure from the SCA in September 2022, there are currently no women permanently heading a superior court. There are six women deputy heads of court (DCJ Maya, and DJPs Goliath, Mbhele, Mphahlele, Phatshoane, and Semenya).

This means that the Heads of Court, a powerful statutory body chaired by the chief justice, responsible for crafting judicial policy, is now comprised exclusively of men. The JSC will be under some pressure to rectify this situation as over 40% (113) of SA’s 254 judges are women.

It is not Judges Matter’s or the DGRU’s practice to advocate for specific individual candidates. But we do think that, in addition to considering whether candidates meet the criteria for judicial leadership positions, the overall lack of women in judicial leadership positions does need to be given serious consideration by the JSC.

If women candidates are passed over for the leadership position, we would suggest that the successful male candidate would have to have exceptional qualities to distinguish them. To put it bluntly, there would need to be a compelling reason for the JSC to appoint them.

As we have argued in the past, judicial diversity strengthens the legitimacy of the judiciary. Importantly, women’s representation and wider diversity in bodies like the Heads of Court improve the decisions made there.

This latter point underscores another important consideration: it is not enough for there to be women judges in leadership but there should generally be judges with feminist thinking, who would be able to assess structural problems in the judiciary from feminist lenses, and the gendered dimensions of solutions. A feminist agenda in the judiciary will not only fall on the shoulders of people like Justice Maya, but must generally reach all judicial leaders. Although having more women in judicial leadership is important, it is certainly not the stopping point.

The JSC’s Western Cape headache

The JSC will have to resolve another awkward situation ahead of its last day of interviews when it will interview four candidates for a vacancy on the Western Cape High Court.

Judge President John Hlophe is constitutionally required to be in the room or to send an alternate. However, the Judicial Conduct Committee’s decision to recommend a tribunal investigation against him and Deputy Judge President Goliath triggers the JSC’s duty to advise the president on the desirability of their suspension, in terms of section 19(4) of the JSC Act. This would be in addition to the JSC’s July decision to recommend Hlophe’s suspension pending impeachment, which still needs to be confirmed by the president.

The JSC could simply say it has not yet taken a decision on the second ground of suspension, but it would be hard-pressed to explain why it has not done so, and what steps it intends to take to deal with the Western Cape High Court headache.

Conclusion

The October JSC interviews will be important in assessing whether the JSC is making key progress on the many issues confronting the judiciary today.

The JSC’s October 2022 sitting will be at the Marriott Melrose Arch from 3 – 10 October 2022 from 12:00 on the first day and 09:00 on subsequent days.

Judges Matter will provide live 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-2022/

See who sits on the JSC panel: https://www.judgesmatter.co.za/opinions/who-sits-on-the-jsc-panel/

See the schedule of interviews: https://www.judgesmatter.co.za/wp-content/uploads/2022/09/Interview-Schedule-Oct-2022.pdf