Judicial Service Commission (JSC) proceedings in October 2023 were “so flawed” that NGO Freedom Under Law (FUL) wants a court to order the commission to adopt a radically new way of assessing candidates for judicial appointment.
The JSC was in the news last week because of a dispute over whether MK Party MP John Hlophe, who was impeached as a judge last year, can lawfully be one of its commissioners. Judgment in that case was reserved on Wednesday. But there is another case on the JSC pending, which could have significant consequences for how the commission does its work.
The October 2023 recommendations for the Supreme Court of Appeal (SCA) caused an uproar in the legal community. The JSC interviewed 10 candidates for four vacancies but only made two recommendations. It overlooked eminently qualified candidates, including judge David Unterhalter, who was described by the court’s deputy president, Xola Petse, as the kind of “heavy-lifter” the court desperately needed at the time.
FUL went urgently to court. A partial settlement was reached when the JSC agreed to accelerate the next round of SCA interviews, after which vacant SCA posts were filled and Unterhalter was appointed.
However, FUL also wanted the court to declare as unlawful the JSC’s “failure to develop, publish and apply assessment criteria”, and to direct the JSC to “require each of its members to assess each candidate in writing for compliance” with the assessment criteria.
This part of the case, Part B, is still pending. In written legal argument filed earlier this month, counsel for FUL, Wim Trengove SC, said “the South African experience in the JSC” demonstrated the need for these further orders.
How to account
In 2011 the JSC was taken to court by the Cape Bar Council in a similar scenario: it left vacancies open on the Western Cape High Court and overlooked renowned silk Owen Rogers (now a Constitutional Court justice).
Then, as now, a problem faced by the JSC was how to fully account for its decision. The JSC votes by secret ballot. The record of deliberations does not accurately reflect what influenced individual votes: some commissioners stay silent in the discussion and some may be persuaded by what is said and change their mind.
In the Cape Bar Council case, the JSC said the best reason it could give when a candidate was not appointed was that he failed to secure enough votes. But that was “no reason at all”, said the SCA in 2012. This time, the JSC sent a letter, compiled by the chief justice, setting out the JSC’s reasons. Chief justice Raymond Zondo was able to set out “from the record of the deliberations, [that certain] views were expressed in relation to the candidates”. But he also stated that “the voting procedure is in secret. It is not possible to know the identities of the commissioners who voted for certain candidates and their reasons for doing so.”
Principles
Trengove argued that the duty of decision-makers to give reasons comes from foundational constitutional principles, which apply to the JSC as a constitutional organ of state: the principles of legality, transparency and accountability.
We agree that distilling the reasons from deliberations does not produce the JSC’s true reasons. However, the challenges with producing reasons where a vote is taken in secret does not mean the JSC may dodge its constitutional obligations
— Wim Trengove SC, counsel for Freedom Under Law
“We agree that distilling the reasons from deliberations does not produce the JSC’s true reasons. However, the challenges with producing reasons where a vote is taken in secret does not mean the JSC may dodge its constitutional obligations,” he says.
FUL proposed that each commissioner should be required to score each candidate in writing and “record any further reasons that he or she may choose to give” and then hand these in when they cast their votes.
Then, should the JSC be required to account for its decision in court, it would “be in a position to provide meaningful and true, contemporaneous reasons for its decision”, said Trengove.
The JSC is yet to file its own legal submissions. But in an answering affidavit filed in April last year, its secretary, Mbali Mondlane, said the JSC already had assessment criteria, which were adopted in April 2022. If FUL believed these were inadequate, then it should challenge them, “but it cannot claim the JSC has failed to adopt selection criteria”.
Nor did the constitution require “a mathematical formula” for assessing candidates, she said. Even if the JSC adopted a written assessment requirement, it would not solve the problem raised by FUL if a secret ballot was still being used. “Commissioners could vote contrary to their assessments. They could score candidates equally and choose to vote for only one.”
She said the JSC had already formally undertaken to review its assessment criteria after the elections. “The JSC has therefore agreed to do precisely what FUL alleges it is obliged to do,” she said. JSC spokesperson, Sesi Baloyi SC, told the Sunday Times the commission had not conducted a review of the criteria as yet.
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