Judging the judges is a smoother task now

Guidelines for the conduct of Judicial Service Commission (JSC) interviews were adopted at their start last week, making an immediate and marked difference to how interviews unfolded.  

From the first, chief justice Raymond Zondo said: “We will be robust in questioning candidates. But at the same time we will have due regard to the human dignity of candidates. We will show respect, we will show courtesy, we will strike a balance.” 

For the most part, commissioners stuck to the rules. Where they strayed, they were reined in by the chairs, Zondo and deputy chief justice Mandisa Maya, and each other.

Candidates were not attacked, mostly not ambushed or asked irrelevant questions, as has happened in the past. Commissioners focused on what mattered: the candidates’ judgments, knowledge of the law, judicial philosophies and ethics. 

The result was revealing.

Without any attacks, ambushes or irrelevant questions, candidates were still grilled. Judgments were ruthlessly, albeit respectfully, dissected, sometimes paragraph by paragraph.

Questions were tough and commissioners did not mince their words: a “very tenuous grasp and understanding of the very basic law of review”, suggested commissioner Kameshni Pillay SC to John Holland-Müter SC (who nonetheless got the nod) about one of his judgments in urgent court.

I'M AFRAID YOU DON'T ACTUALLY KNOW

When advocate Dawid Welgemoed, who was up for chair of the Water Tribunal, was asked what socioeconomic rights are, he answered: “It’s a complex question. As I understand it, it’s the rights of any individual to resources, freedom, constitutional rights.”

Tembeka Ngcukaitobi SC responded: “Well I’m afraid to tell you that you don’t actually know what socioeconomic rights are.”

When commissioner Clement Marumoagae followed up, asking if, as an attorney helping a very poor person with a divorce matter free of charge, would “I [be] dealing with a socioeconomic matter under those circumstances?” Welgemoed answered: “I would think so.” Marumoagae’s response was a nonplussed “sho!” He was not recommended. 

Then there were the candidates for the Limpopo high court division, one which services a large rural population. Two of the three were asked how they would resolve a dispute of custom under customary law.

Attorney Podu Mdhluli said she would start with the common law “and take it from there”. Under the constitution, customary law is a distinct legal system with equal status to common law.

To the same question, magistrate Sharon Mthimkulu said: “I do not have an answer for you.” Surprising no-one, the Limpopo high court post was left vacant.   

Acting judges should have, at least, a minimum amount of experience and expertise to avoid serious miscarriages of justice

DEEPLY UNCOMFORTABLEMOMENTS

There were several deeply uncomfortable moments such as these for the candidates. But that is how it should be when someone is interviewed for the position of judge, in whose hands lie people’s liberty, homes and financial futures, and where once appointed, removal is extremely difficult. 

The overall picture was that there were candidates making themselves available for permanent judicial appointment when they were not ready. It was not necessarily that they were not hard-working, committed, able or might one day be good judges. They were not there yet, however.  

At the end of advocate Mususumeli Madavha’s interview for the Limpopo high court, Maya referred to a suggestion from commissioner Sesi Baloyi SC that she would benefit from more training and experience.

“It does not appear that you agree with her ... I just want to implore you to take that advice. It is sound advice. Please take it to heart,” said Maya.   

Some candidates seemed to have been appointed to act as judges when their readiness to do so was questionable.

Nobody expects acting judges to have the experience or depth of knowledge of their permanently appointed colleagues. But acting judges should have, at least, a minimum amount of experience and expertise to avoid serious miscarriages of justice. 

LIFE SENTENCE

Yet in at least two interviews, candidates were grilled for getting basic legal principles so wrong during acting stints that injustice had resulted.

Some candidates seemed to have been appointed to act as judges when their readiness to do so was questionable. Nobody expects acting judges to have the experience or depth of knowledge of their permanently appointed colleagues. But acting judges should have, at least, a minimum amount of experience and expertise to avoid serious miscarriages of justice.

In one case, involving the rape of a child, magistrate Bulawayo Manyathi, a candidate for the Gauteng division, was repeatedly questioned for misapplying the minimum sentence regime by saying in a judgment that life sentences should be “regarded as a last option”.

Yet, said at least three commissioners, minimum sentence legislation requires that a life sentence should be the default position with child rape unless there are substantial and compelling circumstances to deviate from that.  

In Mdhluli’s interview for the Limpopo division, it emerged she had increased someone’s sentence by two years in circumstances where doing so was unlawful: an appeal court may not increase a sentence unless the state has appealed, said acting president of the Supreme Court of Appeal (SCA) Xola Petse.  

Even more concerning was when, after candidates’ judgments were dissected and found wanting, it emerged that they had been signed off by senior, permanent judges. Manyathi’s was approved by Judge Nicolene Janse van Nieuwenhuizen.

In the case of Mdhluli’s judgment, it had been signed off by acting judge president Matsaro Semenya. The division's most senior judge had got basic law wrong.  

It is unclear whether these judgments — three came up in the interviews — are isolated incidents or a reflection of a broader trend.  

What also became evident was that some candidates believed acting was a time to learn on the job. Some said, or implied, that it was OK to appoint them permanently without some of the basics as they would continue to learn on the job.  

Baloyi spelt out the dangers of this approach in the interview of Thembi Bokako, who had been nominated for the Gauteng division: “As a judge, and that holds true as an acting judge too, you are making decisions that affect people.

"And I think it is unfair on the public for us to say: ‘She should be appointed, she will grow in her reasoning capacity ... but in the meantime, the public has to put up with this deficiency' ... That makes me terribly uncomfortable.” 

One judgment was “almost incomprehensible” and “littered with errors”, said Pillay to Bokako. In response to concerns raised about her judgments, Bokako said she was “a candidate of growth” and would continue to learn and grow on the bench. 

The JSC has often been criticised for appointing candidates who have had to learn on the job in pursuit of its transformation mandate.

This should be rejected because the constitution demands, for good reason, that the judiciary broadly reflect South Africa’s population in terms of race and gender, and this is the JSC’s constitutional task.  

This emotive debate has obfuscated where the real problem lay. 

PUZZLING CHOICES

Over the years puzzling choices by the JSC have been increasingly difficult to defend on the bases of transformation. White men were appointed who might not have been had the JSC scrutinised their judgments carefully.

A proper look at candidates’ work would have enabled the commission to tell which candidates (whatever their race and gender) could bridge any experience gap or if they needed more time.

But instead, qualities that should not matter much for a judge — such as charisma and charm — seemed to play a bigger role than candidates’ judgment records or their commitment to the profession or society.

On close observation, and more so in recent years, what it really came down to was that commissioners were unprepared. Many would come to interviews seemingly having read very little of the candidates’ work or history and would therefore apparently be swayed by irrelevant factors. (Seemingly and apparently because the JSC’s deliberations happen behind closed doors and it does not give reasons for its decisions.)

Or commissioners would come to the point of voting having learnt little about the candidates’ experience, ability or potential because interviews would have been dominated by sideshows that had little to do with the candidates.  

A FALLACY

The myth that the JSC’s failings are linked to its transformation mandate was also showed to be a fallacy when it did its job properly last week: when candidates’ judgments and legal knowledge were subjected to rigorous scrutiny, the white candidates fared no better than the black candidates, the men no better than the women.    

So if the JSC is dismayed with what it is seeing right now, it is a matter of the chickens coming home to roost. These are not transformation chickens, but the more worrying chickens of previous JSCs inconsistently doing their jobs. 

The new-look JSC, with its written guidelines and criteria, is welcome. But now that it is doing its work well, these interviews showed just how much it has to do.