JSC to review voting process after senior post left vacant

The Judicial Service Commission (JSC) is undertaking a “formal process” to look into its voting procedure, after leaving vacant a post on the Supreme Court of Appeal (SCA).

Six candidates were interviewed on Wednesday for South Africa’s second-highest court. Several sailed through their interviews, appearing eminently appointable. Yet after a marathon deliberation behind closed doors, no-one was appointed. None of the six had received a majority of votes, said the JSC.

The result is that the JSC will have to re-advertise and re-interview. More importantly, the interviews exposed possible gaps in the JSC’s voting system, which, if unaddressed, could leave the commission vulnerable to court challenges in the future.

Speaking to the Sunday Times this week, JSC spokesperson Sesi Baloyi SC did not detail all the aspects of the voting system that would be looked into. But one clear vulnerability is that the JSC’s established voting procedure has never been put down in writing as a formal set of rules or regulations. Baloyi confirmed this.

The 2018 gazetted “procedure of the commission” only says the commission deliberates in private and shall decide “by a majority vote”. It also says the voting process is conducted by way of secret ballot. But the precise mechanics of the voting, what constitutes a majority, what happens when there is a tie, what happens if no candidate secures a majority — none of that has been provided for in writing anywhere.

In 2011 the Western Cape High Court said whatever the JSC’s voting system was, “it should be clear and defined in advance to deal with any kind of situation which might present itself”.

A written guideline would help the JSC to not take ad hoc decisions and would guard against accusations of irrational and arbitrary conduct ... It is risky for its institutional memory to reside in people instead of documents.

“To deal with possible scenarios which might arise, as and when they arise, on an ad hoc basis will … not be consistent with the requirements of rationality and transparency and would be arbitrary,” said judge Piet Koen.

Koen’s words were prescient: in October 2023, the JSC was hauled to court by Freedom Under Law (FUL), and one of its attacks was how the JSC went about its voting, with FUL saying it was irrational in law.

The case in which Koen wrote the high court judgment is also illustrative. When it got to the SCA, justice Fritz Brand said the JSC’s voting system was “shrouded in obscurity”. The JSC had in its own court papers given a contradictory account of how the system worked, and then its counsel had added to the confusion during argument, said Brand.

A written guideline would help the JSC to not take ad hoc decisions and would guard against accusations of irrational and arbitrary conduct. By design, the JSC’s membership changes; every election may bring new MP members, for example. Its staff also may come and go. It is risky for its institutional memory to reside in people instead of documents.

A second aspect the JSC might be looking into is what should happen when its usual voting process fails to produce a majority and vacancies cannot be filled — as happened this week. Baloyi said this situation did not arise often. But it happened in October 2023 — hence the FUL litigation.

In that round, two vacancies were left open on the SCA. Eleven candidates were interviewed, but only two received a majority of votes, the JSC said after the interviews. This caused a public furore because eminently qualified candidates — including renowned judge David Unterhalter — were overlooked.

The real issue is that there is no clear procedure in place for what should happen if a first round of voting fails to fill all the vacancies. This was raised in the FUL litigation and it was again the problem on Wednesday

When FUL went to court, the JSC disclosed the record of its confidential deliberations and voting process. It emerged that there had been a second round of voting. This was because, in the first round, five candidates received a majority of votes. But there were only four vacancies. Then, in the second round, only two candidates got a majority of votes — hence the outcome.

FUL said it was irrational in law “for a candidate to be considered suitable in the first round and then immediately thereafter effectively disqualified in the second round”. The JSC defended its approach in its court papers.

That litigation was partly settled when the vacancies were re-advertised, in an accelerated process, and the posts filled. But “part B” is ongoing and this aspect may still be a matter of dispute.

This week the JSC decided not to have a second round. Baloyi told reporters the commission had decided on a “cautious approach”, given what had happened with the FUL litigation.

The real issue is that there is no clear procedure in place for what should happen if a first round of voting fails to fill all the vacancies. This was raised in the FUL litigation and it was again the problem on Wednesday.

Can there be a second round of voting? If so, how should it work? Should it work differently for a tie (as happened in October 2023) and for no candidate receiving a majority (as happened this week)? These are some of the questions the JSC’s process of review could answer.