The appointment process of judges and magistrates

Do you have to act as a magistrate or judge before you get appointed?

In South Africa judges are appointed by the President of the Republic on the advice of the Judicial Service Commission (JSC). However, according to the Constitutional Court the JSC must prepare a list of nominees with three names more than the number of appointments to be made at the Constitutional Court and the President may make appointments from the list. The President must appoint the judges of all other courts on the advice of the JSC.

By contrast, magistrates are appointed by the Minister of Justice on the advice of the Magistrates Commission (MC). In this piece we draw a close comparison between the process of becoming a judge and the process of becoming a magistrate. We thereafter consider whether having to act as an acting judge or magistrate is a de facto necessary precursor to permanent appointment.

The process of becoming a judge

There are four steps that a candidate must follow to become a judge. Firstly, a candidate must have studied law, and became an advocate, an attorney or a magistrate. In very rare circumstances a candidate coming from academia may be appointed as a judge, this is because they are seldom appointed as acting judges and often lack experience of legal practice if they have only been in academia.

Secondly, we argue that a candidate must have been asked to act as a judge by the head of the particular court in which the candidate wants to be permanently appointed. The legislative framework of becoming judge is expressly set out in section 174 of the Constitution of the Republic of South Africa, 1996 (the Constitution). Two essential criteria appear from the provisions of section 174, these being that a person must be ‘appropriately qualified’ and ‘a fit and proper person’ to be a judge. These can be regarded as essential or necessary criteria in the sense that a person who is not appropriately qualified or is not a fit and proper person may not be appointed as a judicial officer. The legislative framework set out in section 174 for becoming a judge does not specifically have reference to acting as a judge for a candidate to be permanently appointed as a judge.

Despite the legislative framework for becoming a permanent judge, in the past the JSC has been faced with challenges of not having the requisite number of candidates to recommend to the President for appointment as constitutional court judge(s). Given these challenges, the Chief Justice pointed out that he had to make a choice of delaying the advertising of vacant positions to incentivise candidates to apply through offering potential candidates acting stints. In his view, delaying advertising the positions creates a pool of potential candidates to choose permanent judges from.

Thirdly, when permanent judges’ vacancies occur, those seeking permanent appointment as judges must submit their application to the JSC. The JSC will shortlist candidates who will be interviewed for the permanent position of a judge. There are no criteria for judicial appointment referred to in the JSC process, and the interviews vary widely in length and the questions that are asked.

After the interview, if a candidate gets a majority of votes in the JSC, which is usually 13 votes, the candidate will be nominated by the JSC for appointment by the President. Lastly, the President will make the final decision to appoint the nominated candidate in the position of a permanent Judge. Regarding Constitutional Court appointments the President will exercise his discretion whether to appoint the nominated candidate in the position of a permanent judge.

The process of appointing acting judges

Although the process of becoming a judge does not expressly make acting as a judge a requirement for appointment as a permanent judge, section 175 of the Constitution sets out a process to be followed when acting judges are appointed. Section 175(1) of the Constitution provides that “[t]he President may appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice.” Section 175(2) of the Constitution further provides that “[t]he Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge on which the acting judge will serve”. Despite the provisions of section 175 of the Constitution, we argue that in practice acting judges are appointed by a mere ‘tap on the shoulder’. This has been confirmed by some candidates who appeared before the JSC for interviews and were questioned on their acting experience.

The process of becoming a magistrate

The process of appointing permanent magistrates is similar to that of appointing permanent judges. In terms of section 10 of the Magistrates Court Act 90 of 1993 permanent magistrates are appointed by the Minister of Justice after consultation with the MC. The process of appointing permanent magistrates also involves four stages.

Firstly, a candidate must be legally qualified and have the relevant legal experience. Predominantly, permanent magistrates come from the ranks of prosecutors. In a recent survey we found 69, 01% of magistrates have a background as a prosecutor.

Graph of employment types prior to becoming a magistrate.

Secondly, after notification of existing vacancies and advertisement thereof, those interested in being permanently appointed as magistrates must submit their application to the Department of Justice. The Director General of the Department of Justice will then create a shortlist of the candidates who will be interviewed by the MC.

Thirdly, the MC will conduct interviews of the candidates for permanent appointment. The interview aims to establish, inter alia, qualifications, legal knowledge, the requirements of section 174(2) of the Constitution, leadership and managerial skills. The types of questions posed during the interview process may be found here. While there are no criteria for appointment referred to in the MC process, the interviews are very similar in length, and the questioning is consistent between candidates.

Lastly, candidates who succeed during the MC interviews are recommended for permanent appointment to the Minister of Justice. Similarly, to the Constitutional Court appointments, three recommendations are made by the MC to the Minister of Justice per vacancy.

Do you need to be an acting magistrate to be appointed?

The process of becoming a magistrate does not expressly make acting as a magistrate a requirement for appointment as a magistrate either. However, section 9(3) of the Magistrates Court Act 32 of 1994 makes provision to the effect that the Minister of Justice, “after consultation with the head of the court concerned, may appoint any appropriately qualified and fit and proper person to act – in the place of any magistrate, additional magistrate or assistant magistrate who is not available; or in any vacant office of magistrate; or as a magistrate in addition to any magistrate of a regional division or a district.”

Further, section 9(5)(a)(i) and (ii) of the Magistrates Court Act 32 of 1994 provides that “any person appointed in terms of subsection (3) holds that office for a period determined by the Minister at the time of the appointment, but the period so determined may not exceed three months and may be reappointed to that office in terms of subsection three.”

Although acting as a magistrate is not expressly made a requirement for appointment as a permanent magistrate, the provisions of section 9(3) of the Magistrates Court Act 32 of 1994 provide guidance and insight into acting appointments within the magistracy. Attendance at the MC interviews in October 2019 (October 2019 interviews) also provided more insight into whether acting as a magistrate is a requirement for permanent appointment as a magistrate, senior magistrate, regional court magistrate, chief magistrate and regional court president. However, the October 2019 interviews were only in respect of regional court magistrates.

The October 2019 interviews revealed that acting was an unwritten requirement within the magistracy too.  There were 88 candidates interviewed in October 2019 and each one of these candidates were asked whether they had acted as a regional court magistrate. Out of the 88 candidates that were interviewed in October 2019 only 27 had not acted as regional court magistrates. The outcomes of the October 2019 interviews in respect of confirmed appointments are not yet available. We therefore cannot confirm how many out of the 61 candidates who have acted have actually been appointed as permanent regional court magistrates as against those who had not acted.

An unwritten rule

The appointment processes of becoming a permanent judge and becoming a permanent magistrate are very similar. It is non-negotiable that a candidate must have a legal qualification and experience. In both appointment processes there must be advertisements, there is an application process to be followed and interviews scrutinising the candidates must be conducted. In both processes the interviews focus largely on the provisions of section 174 of the Constitution and this is even more so with the JSC than with the MC.

We argue that both processes seem to have an unwritten rule that candidates must have acted in the position that they are applying to be permanently appointed in. Considering the similarities in the appointment process of becoming a judge and that of becoming a magistrate, two questions emerge. Firstly, would it not be beneficial to both the JSC and the MC to consult each other on how to ensure that their respective appointment processes are effective, and develop a more consistent process? Secondly, would it not be beneficial to the JSC, MC, the legal profession and the public at large to have a written rule that acting is a requirement for appointment as a judge and as a magistrate?