Why the JSC’s no acting, no appointment policy could lead to bad appointments

Whenever there are vacancies in the judiciary, the Judicial Service Commission (JSC) advertises those vacancies, receives nominations, shortlists candidates, and public interviews are conducted to select candidates who are then recommended for appointment by the President. In order to qualify for appointment as a judge, one must be appropriately qualified and must be considered to be a fit and proper person. Through its usually rigorous interviews, the JSC is supposed to identify and recommend the best qualified and most suitable candidate(s) for appointment. In order to identify such candidates, the JSC probes questions along certain thematic issues. These themes seem to include: academic qualifications; one’s knowledge of legal concepts (such as the principle of separation of powers and the court’s rules of procedure), case flow management, and one’s perception of issues of racism and equality. However, one theme which seems to dominate the JSC’s line of questioning during the interviews is the candidate’s experience as an acting judge.

Usually, candidates are asked if they have previously acted as a judge at the level to which they seek a substantive appointment. In principle, this is a relevant question because it is necessary to appoint persons who are best experienced to do the job. The assumption is that if a candidate has previously acted as a judge at the level to which they are seeking appointment, then it is possible to verify their performance and get an indication of whether they will be able to discharge their duties according to what is expected of them by the Constitution.

But what is problematic is that the JSC seems to consider the experience of acting as a judge to be a de-facto minimum requirement for one to qualify for appointment as a judge. For instance, in recent interviews for a high court position, one of the JSC commissioners said to one of the candidates:

“Do you believe finally, Doctor you would benefit from an acting position rather than just going for a permanent position. I will tell you why. You have never acted in the High Court and if you were recommended for a permanent appointment that’s a permanent position, should you fail anything can happen, should you fail the system will be stuck with you. So, the best thing is to start acting somewhere and if you’re successful then you could apply for a permanent appointment. …”

During the same round of interviews but to a different candidate, a similar question was asked as follows:

“Don’t you think the wise thing would be rather to try and secure an acting position elsewhere and if you prove your worth, you can come back and apply for a permanent appointment?”

But this is not the intended constitutional purpose of acting as a judge!

Section 175 of the Constitution, which regulates appointment of acting judges, contemplates that whenever there are temporary vacancies in the judiciary, acting judges should be appointed and the persons appointed into those acting positions should be competent persons. This interpretation was confirmed at paragraph 127 of the 1996 Certification case when the Court held as follows:

“The appointment of acting judges is a well-established feature of the judicial system in South Africa. Such appointments are made to fill temporary vacancies which occur between meetings [interviews] of the JSC or when judges go on leave, are ill or are appointed to preside over a commission. These appointments are made to ensure that the work of the Courts is not disrupted by temporary vacancies or the temporary absence or disability of particular judges.”

The constitutional purpose of appointing acting judges is therefore not to train candidates or assess their worth before they can be appointed into substantive positions. Certainly, there is nothing wrong with using it to test for suitability as a by-product, but experience of acting as a judge should not be used as a minimum requirement for appointment.

There are many other appropriate forms of experience which the JSC should insist on as means to prove if one has what it takes to become a judge. One’s relevant experience as a legal practitioner should be considered as the key indicator of suitability for appointment as a judge.

Furthermore, being an acting judge should be a temporary position. But when one reads through the transcripts of the JSC interviews, it seems that the JSC has taken the position that the longer a candidate has acted, the better his or her chances of being appointed as a judge. This approach seems to encourage some people to continuously act as judges for periods as long as two years. In a recent interview one candidate claimed that she left her job as an advocate and “immediately went into acting at the High Court,” and she had been acting for two years. Notwithstanding that this candidate struggled to explain certain basic legal concepts such as the meaning of unfair dismissal and separation of powers, she was eventually (in the April 2018 round of interviews) recommended by the JSC for appointment as a High Court Judge. In between the two sets of interviews, she was acting as a judge!

Based on this case and the questions asked by the JSC in a series of interviews, it seems the JSC is more comfortable with candidates who have had such long acting stints. But when a lawyer leaves their job to “go into acting”, that could raise questions regarding the competency of that person as a legal practitioner, unless there are really compelling reasons, such as one going into retirement. In order to be a competent judge, one must have requisite knowledge and exceptional skills in legal practice. If one is a good lawyer who possesses such qualities, then it should be difficult for such a person to act as a judge for two years and be away from their legal practice and clients for such a long time. Therefore, the assumption that one must have acted for a long time in order to be a good judge is not always correct. Acting as a judge must not be treated as a minimum requirement before one can be appointed as a substantive judge. The best way of recruiting technically competent judges remains to consider their education, range of experience in legal practice, quality of performance, their character, but not necessarily how long they have acted in a judicial capacity. Acting as a judge should be an added advantage and should not be elevated to being a minimum requirement.