Becoming a judge in South Africa is unlike most jobs as one does not train to become one, and then apply for the job. There is no “judging” degree in South Africa. This is unlike other countries, mostly European, where you can study to become a judge when you attend university.
As this is the case, it is interesting to look at the ways in which one might become a judge:
Step 1: Study law and become an advocate
Traditionally, before 1994, and still in many cases now, you studied law, went to the bar, and became an advocate. At this point you would be described as a “junior” (The bar is just where advocates work – for most of them, it doesn’t involve an actual bar.)
Step 2: Become accepted as senior counsel
Then after you had been an advocate for a while, you could be recognized as being hardworking and clever, and you would be made a senior. This is dependent on the kind of work you get, so if you are not getting High Court work, and are only doing Magistrates Courts matters, that would count against you being a “senior”. Senior counsel charge more, and are expected to run trials and opposed matters.
Step 3: Be asked to be an acting judge
Occasionally, judges need an extra judge to help out in a case – which is when you get a chance to be an acting judge. This gives the Judge President, or the head judge of a particular division, the opportunity to see if you are any good. If you are deemed ‘good’ you will be given the opportunity to be an acting judge for another few terms. (Courts have terms, like school.) In order for candidates to be appointable to the bench, it has become the practice to require acting experience. This is despite the fact that acting experience was not listed as one of the criteria for appointment by the JSC in 2010.
You may well ask if this old fashioned path to the Bench still holds. In fact, a growing percentage of judges come from the magistracy. We put it at no more than 15% at this point, but it is a logical place to draw acting judges from, especially given the more transformed character of the magistracy.
Attorneys are also appointed as acting judges, but their problem is that they may not run their practices while on the bench. For a single practitioner or someone in a small firm this presents enormous obstacles.
Academics are no longer appointed acting judges, which explains in some measure why they are not appointed in the higher courts, like the Supreme Court of Appeal and the Constitutional Court. This is the de facto situation, and not de jure. Academics are represented on the JSC, but we have never heard that representative speak up for more academics being appointed as acting judges, or at all.
If you get a majority of votes in the JSC, usually 13 votes, then you are selected, and the President will publish your name in the Government Gazette. If you are unable to secure a majority vote then there is no appointment and your application is deemed unsuccessful. The lack of a nomination is particularly interesting as the courts have recently said that to not make an appointment for a Judge position, when there is a possible candidate available, is irrational. As for those who are seen as fit, proper and appropriately qualified there can be no reason given for not appointing them.
The chairperson and deputy chairperson of the Commission have to distil and record the Commission’s reasons for recommending the candidates selected.The issues discussed in the deliberations are the reasons they put forward.
How to apply
The President of the Supreme Court of Appeal or responsible Judge President tells the Commission when a vacancy occurs or will occur in the Supreme Court of Appeal or any provincial or local division of the High Court.
The Commission informs the institutions of the vacancy and calls for nominations by a specified closing date.A nomination takes the form of a letter of nomination which identifies the person making the nomination, the candidate and the division of the High Court for which he or she is nominated, a CV and a questionnaire prepared by the Commission and completed by the candidate.
Once the nominations have been received the “screening committee” prepares a short list of candidates to be interviewed. The “screening committee”, which is a subcommittee of the JSC, is made up of the representatives of the legal profession and the Minister of Justice. After the short list is curated the questionnaires from the candidates are sent to the members of the JSC, who start preparing for the hearings.