Review of the JSC April 2024 Sitting

The April 2024 interview session by the Judicial Service Commission (JSC) was short in terms of time but felt long in terms of substance. Indeed, the April 2024 sitting might be best remembered as a JSC session where the focus was almost exclusively on the candidates’ qualities and suitability, without the dreaded political sideshows.

The scrutiny on the candidates was as intense as the brightness of the lights above. This is good for the JSC’s fulfilment of its constitutional role to select only the best candidates for appointment as judges.

Unusual for the JSC, the April 2024 session ran only three days from Monday to Wednesday. This was partly because the session was right in the middle of silly season – six weeks before the national elections. The politician members of the JSC were eager to hit the campaign trail, and several – including Commissioner Julius Malema – partly attended online. The April session yielded only 13 candidates for four vacancies across various courts, a low number compared to previous years.

As with all JSC sessions, half of the first day was spent in the closed meeting of JSC commissioners. The meeting was highly anticipated, as the JSC had a long list of issues to resolve: the JSC’s approach to implementing criteria to non-judge candidates, the appointment of a tribunal to investigate sexual harassment allegations against Eastern Cape Judge President Mbenenge, and the status of a sexual harassment policy that the JSC undertook  to draft back in April 2023. But immediately after the JSC’s closed meeting, it went straight into the interviews.

Constitutional Court Interviews

First up was human rights law Professor David Bilchitz, the first of two non-judge candidates to be interviewed for the last remaining seat on the Constitutional Court. The third non-judge candidate, Advocate Matthew Chaskalson SC, withdrew a few days prior due to a cycling accident.

Bilchitz’s interview started with the usual pleasantries, with Chief Justice Zondo going through his CV. However, things took a twist. Zondo strangely devoted the first half-hour asking Bilchitz about how he found the experience of acting, and whether it was a good idea to bring non-judges to act on the apex court. Bilchitz was almost blushing in his description of how pleasant it was. “I felt tingles going down my spine”, he said, adding that he was honoured by the invitation and enjoyed the collegial spirit of the court.

To most observers, the question seemed less about the candidate’s actual experience, and more about affirming Zondo’s decision to invite non-judges as acting justices at the Constitutional Court, after a 25-year hiatus. Zondo would later repeat this question to all other candidates, who were equally gushing with praise for the man who had now determined their fate.

It’s worth mentioning that all four candidates had been hand-picked to act on the apex court in the 12 months prior to the interview. Although not a legal requirement, acting on a court has become an almost mandatory requirement, even though the decision of who gets to act is shrouded in secrecy. Judges Matter has raised this problem several times.

In respect of the Con Court interviews it was, essentially, a Zondo-tailored shortlist.  That means, along with taking the credit for drawing in experienced non-judge candidates, he must equally take the heat for an all-male shortlist for a 60% male-dominated court.

Bilchitz’s interview was curious in that the JSC was assessing him without any judgments to rely on, and with reference only to his published work. This presented difficulties that Zondo admitted quite early on. “I am going to ask you questions which, as someone without much practical experience might find difficult, but I have to ask them nonetheless,” said Zondo. He then asked a series of questions on the court’s powers to review legislation, and the consequent orders Bilchitz would give in specific circumstances.

Bilchitz sailed through these questions, but came unstuck on questions on his broad judicial philosophy, particularly his adherence to the ‘minimum core’ review standard in socio-economic rights cases. In several of his writings Bilchitz argues that there should be a ‘minimum core’ of tangible goods (housing, education, water, healthcare etc.) that the government should provide to people to satisfy the constitutional obligations in the Bill of Rights. Any failure to provide these minimum goods, the argument goes, must mean non-compliance by government, and courts should enforce this on judicial review.

However, this argument has already been rejected in two cases of the Constitutional Court, in favour of the ‘reasonable standard’ of review, i.e. whether government acted reasonably in the circumstances to provide the goods guaranteed by the Bill of Rights.

Several commissioners, including advocates Pillay SC and Ngcukaitobi SC and Professor Marumoagae, were concerned about Bilchitz’s answers. Bilchitz seemed to cling tightly on to his academic theories and disregarded the jurisprudence laid down by the apex court. The concern seems to have been that, if appointed, Bilchitz will pay less attention to the doctrine of precedent and seek to advance his own theory. “I respect judicial precedent,” Bilchitz responded, and explained that, even though he has written extensively about the minimum core theory, he would follow the Court’s precedent.

Another candidate, Supreme Court of Appeal Justice Tati Makgoka was similarly grilled on his own judicial philosophy. Referring to a case concerning the admission of an attorney, and a case on the provision of legal assistance to mineworkers injured in the Marikana Massacre, Makgoka said, “even though there was no law available to rely on, justice required me to rule in favour of the applicants in both cases”.

This disturbed several commissioners, including Commissioner Steinberg SC, who put to Makgoka the proposition that he was essentially an outcomes-based judge, who paid scant attention to the law. “I don’t think so, commissioner,” Makgoka explained, “in my judgments I have demonstrated my commitment to following the law.” He then explained that in both cases there were novel issues where the law wasn’t clear, and not that he disregarded existing law.

Advocate Alan Dodson SC, who was coming before the JSC for the fourth in as many sessions, almost sailed through his interview, and hardly encountered any difficulty. Similarly, SCA Justice Ashton Schippers also had a relatively smooth interview.

Because the JSC interviewed the bare minimum of four candidates, it faced a stark choice: either recommend all of them or recommend none of them for appointment. “After two days of interviews, the JSC found one of the candidates unsuitable for appointment… and will therefore readvertise the vacancy,” JSC spokesperson Mvuzo Notyesi announced.

Land Court Interviews

Next were interviews for the inaugural Judge President of the new Land Court. “New” in the sense that a recent legislative amendment renamed the court by dropping “claims” and expanded its jurisdiction on a host of other land legislation that had previously not been in the purview of the court. It also created the court as a permanent court, with a full complement of permanent judges. The new JP would have the duty of breaking new ground for the Land Court.

Four candidates – three women and one man – were interviewed. First candidate, SCA Justice Zeenat Carelse, who was the most senior and probably most favoured candidate, sailed through her interview. Appointed only in 2022, the second candidate, Land Court Judge Susanna Cowen faced a relatively tough interview. Several commissioners were concerned about elevating her to judicial leadership considering her relatively short stint as a judge. Nevertheless, all commissioners were impressed by Cowen’s high work ethic and the initiatives she led to improve the court functioning.

There was a long and excruciatingly awkward silence during Gauteng High Court Judge Shanaaz Mia’s interview, as she gazed into her laptop, trying to find the answer to the relatively simple question of how many judgments she had written. Similarly, there was visible frustration on the faces of the commissioners when Land Court Judge Muzikawakhelwana Ncube’s interview, whose answers ranged from whimsical political rhetoric to the bizarre suggestion that, to save accommodation costs, judges should shack up with relatives while on circuit duty. Carelse was recommended for appointment.

Electoral Court Interviews

Only six weeks before the election, the interviews for the Electoral Court were highly anticipated. Sadly, they disappointed. Both candidates, Judges Leicester Adams and Seena Yacoob, struggled with questions on the functions of the court. Adams could not satisfactorily answer what laws fell within the jurisdiction of the Electoral Court. Commissioner Xaba asked Yacoob what would disqualify an independent councillor from holding office in a municipal council, While Yacoob gave the correct legislation, she could not give the precise section off hand, which was fair. DCJ Maya quipped that such “textbook questions” do trip one up, as the interview was not an “open exam”. Both candidates were not recommended for appointment.

North West High Court Interviews

The week ended with interviews to fill the single vacancy on the North West High Court. Two of the candidates, Regional Magistrates Rose Mogwera and Collen Matshitse, were returning for a second and third time respectively, while the third, Regional Magistrate Andrew Reddy, was a novice. Both returning candidates were dismal, with Commissioner Dodovu asking Matshitse to respond to the proposition that Matshitse’s performance seemed worse than the last time. “I would agree with the commissioner that my performance has not improved but I wouldn’t say it has gotten worse,” he responded. Reddy was recommended for appointment.

Sexual Harassment Policy and the need for competent candidates

After the interviews, Notyesi gave an update on the outcomes of the JSC’s closed meeting earlier in the week. On questions of sexual harassment in the judiciary, he confirmed the appointment of the Mbenenge Tribunal, and that the JSC would no longer draft its own but would input into the Anti-Sexual Harassment policy being drafted by the judiciary. Additionally, the JSC would input into the justice minister’s draft Acting Judge Policy, and the report on rationalisation of the courts. Importantly, the JSC would review its candidate questionnaire to specifically address questions of integrity (which Judges Matter and the DGRU have been raising for some time).

Perhaps the key takeaway from the JSC’s April 2024 sitting is that when the JSC is less focused on side shows and is laser-focused on assessing candidates on their legal and judgment-writing experience, the process is fairer and more rigorous.

Disappointingly, the quality of the candidates leaves much to be desired. Ironically, this is a positive outcome: competent and exceptional candidates should be encouraged to put themselves forward, and those who are less suitable must stay away. This is what the JSC interviews should be about anyway.