What to expect in the April 2023 Judicial Service Commission interviews
From the 17th to the 21st April 2023 the Judicial Service Commission will be interviewing 22 candidates for 19 vacancies within the superior courts of South Africa. Among those will be two important leadership positions: Judge President of the Mpumalanga High Court, and the President of the Supreme Court of Appeal.
However, what is of greater concern, and requires the JSC’s careful attention, is that which is not on the interview list.
The JSC needs to finalise criteria
Firstly, in November 2022 the JSC released a set of draft criteria and question guidelines that will be applied to JSC interviews. This was a significant development, as it showed that the JSC was taking public criticism of its processes seriously and was determined to change. Alongside the release was a call for public comments on the criteria, which was heeded by several organisations, including Judges Matter.
In our submission, we welcomed the JSC’s development of criteria and question guidelines, pointing out how they clearly articulate key aspects of what the JSC should be considering in its appointment of judges. However, we pointed out key aspects of criteria that could be improved, such as, that:
1. the JSC apply criteria at all stages of the appointment process (including at shortlisting and during deliberations),
2. prioritising the needs of specific courts, including appointing candidates who would best serve those specific needs, and
3. Including additional questions that scrutinise integrity and financial propriety, including asking whether a candidate has ever had disciplinary or other court action taken against them.
These and other recommendations, we believe, would go some way in strengthening the process. The JSC has set aside the first half of the first day (Monday, 17th April) to meet and consider whether to adopt the draft criteria as binding and applicable in this round and for the future.
The JSC’s failure to attract candidates
Secondly, the JSC has failed to attract sufficient candidates to fill all the vacancies in the superior courts. Indeed, compared to previous rounds, this round has the lowest number of candidates (only 22 for 19 vacancies, compared to April 2022, which had 29 candidates for 13 vacancies). Most significantly, the JSC has failed to attract sufficient candidates for a Constitutional Court vacancy that has been open since 2021.
There might be many reasons for this situation, but the most poignant seems to come from judges themselves, who (off the record) say they refuse to subject themselves to a process as chaotic and humiliating as the ‘current’ JSC interview process. The JSC thus has its work cut out for it in terms of convincing good candidates to put themselves forward for judicial appointment. The first step seems to be adopting clear criteria for judicial appointment, but there are many others, including adopting a code of conduct for commissioners.
The consequence of the JSC not inspiring public confidence, is that poor candidates apply for appointment (as we saw in the last round) and that, driven by the need to fill a judicial post, the JSC inevitably appoints them. This is not good for our courts.
Women in judicial leadership
Third, is the issue of women holding leadership positions in the judiciary. Currently, only one woman permanently holds a head of court position: KwaZulu-Natal Judge President Thoba Poyo-Dlwati. After this round, two more women may possibly join her – if confirmed by the JSC and appointed by the president. Namely, Justice Mahube Molemela as President of the Supreme Court of Appeal, and Judge Segopotje Mphahlele as Judge President of the Mpumalanga High Court.
However, the JSC needs to do much more to encourage women to put themselves forward, and to investigate the circumstances when women do not. For example, the majority of judges on the Labour Court are women, yet women were nowhere to be seen when it came to appointing the deputy judge president. This is something the JSC should investigate.
Appointing women judges to judicial leadership is not only for the sake of representivity
(which is important), but it is also important for the legitimacy of the courts, affecting the quality of decision-making at the highest levels in our judiciary. A decision taken by a diverse collective, who all come from different perspectives, is likely to be better than one taken by a narrow group of similar minded persons. For important policy decisions like the development of an anti-sexual harassment policy, or an acting judges policy, not having women in the room will yield poor decisions. It is therefore incumbent on the JSC to ensure that more women sit in the heads of court collective.