Questions of criteria at the JSC interviews

The Judicial Service Commission has announced a number of vacancies in various courts, including the Western Cape and Gauteng High Courts. Nominations must reach the JSC by the 28th of June, after which the sifting committee will meet to decide which of the nominated will be shortlisted to be interviewed by the JSC in the week of the 7th of October.

The question will again arise as to the criteria that the JSC will use in appointing candidates to the bench? Questioning is uneven during the JSC interviews. For instance, there are huge differences in the length of interviews and candidates are not asked similar questions.

The questions asked of candidates certainly do not always relate to criteria. In fact many of them relate to judicial politics, the functioning of the courts, and the progress of the JSC itself in appointing a transformed bench.

However, it is encouraging to note that one of the Commissioners, Mr Msomi, is asking questions that go directly to criteria. Mr Msomi is an attorney from Durban, and appointed to the JSC by the President.

In the recent interview of Judge Basson for a Constitutional Court position, Mr Msomi asked;

“the question on behalf of South Africans who are listening to this interview; what do you think are the challenges facing constitutionalism and transformation in our country?”

In a second question he asked;

“And then if you were to be pigeon holed, and then you can say no to this question, are you a judicial activist or are you conservative in your approach to judicial jurisprudence?”

In an interview of Judge Kathree Setiloane at the same hearing he asked about transformative constitutionalism, and comments of the late Chief Justice Pius Langa on the subject;

“One of the things that he (Justice Langa) touched on, which I would like to invite your comment on, is the legal culture in South Africa, where [the Justice] bemoans the fact that, our legal culture is formal rather than substantive in nature. Looking back now where we are, have we gone past that stage? Or are we still a very formalistic in our legal culture in terms of how we adjudicate matters which become before our judges?”

Judge Tshiqi was asked a similar question by Mr Msomi, around the piece written by the late Chief Justice Pius Langa.

“One of the issues that he raises sharply, is what he calls the formalistic approach of the Legal culture of South Africa versus what he calls substantive reasoning in our adjudication. Perhaps within that broad philosophy, where would you belong? Are you formalistic, or have you crossed the bridge to substantive adjudication?”

In Judge Goliath’s interview Mr Msomi made reference to controversies concerning Constitutional Court judgments, and in particular concerns around the Jacobs judgment, which Judge Goliath penned, where the Court was deadlocked, raising the issue as to whether it is acceptable for the Apex Court to deadlock, or whether they should reach a common position.

In Judge Majiedt’s interview Mr Msomi asked; “what do you regard as the most important human right that is in our constitution?”, a tricky and illuminating question indeed. Judge Majiedt answered that he thought it must be the right to equality and close second and tied to that is the right to dignity.

This line of questioning which goes to criteria for appointment is a very encouraging sign of depth in the search for a best practice model of questioning candidates.