The Judicial Service Commission (JSC) has been in the public eye again this week, tasked with the delicate matter of testing the suitability of four senior and respected judges for appointment to the role of chief justice.
Although not required, the president decided on an open process, a historical first, allowing us to see precisely how a chief justice should be appointed.
It has, in many ways, been disappointing.
The JSC had three jobs. The first was to decide the criteria by which the candidates should be measured. The second was to interview the candidates in line with those criteria. The third was to decide how the JSC would put its findings to the president. This might have entailed excluding the unsuitable; ranking the appointable; naming their preferred candidate or simply describing their findings.
No criteria for the job were agreed upon before the hearings. Acting chief justice Raymond Zondo suggested criteria such as integrity, intellectual leadership, a track record as a judge, being a person who works well with people, as well as someone who can carry out the international role of the chief justice. These all seem fair, but the fact that they were proposed by a candidate seemed odd.
Gauteng judge president Dunstan Mlambo was asked what process the JSC should follow in terms of their recommendations to the president, indicating that this decision hadn’t been taken yet either.
That the questioning was controversial is indicated by Supreme Court of Appeal (SCA) deputy president Xola Petse, who chaired the meeting, ruling against a line of questioning and indicating that not only would further questions along those lines not be allowed, but that the issues raised would not be allowed in the deliberations.
What does this tell us about the JSC itself? Section 178(1) of the constitution sets out the composition of the JSC. The commission consists of people from different sectors to ensure that diverse views are included in judicial appointments. The commission includes members of the judiciary, with the chief justice chairing the commission accompanied by the president of the Supreme Court of Appeal and a representative of the heads of court, a judge president.
To reflect the interest of professional bodies, the JSC includes two practising attorneys and two advocates nominated from the legal profession. A professor of law is also part of the commission. The constitution further provides that MPs in both houses be included — six members from the National Assembly and four from the National Council of Provinces. Lastly, the president is granted powers to designate four people in consultation with leaders of political parties represented in the National Assembly. These members are by convention lawyers.
SA is unusual in allowing such a large number of politicians into the process of choosing judges. There are 10 politicians in the JSC, excluding the minister of justice.
This was historically justified by saying that the politicians were needed to ensure the constitutional project of transformation of the judiciary was delivered. Now, these members of the JSC create a multiplicity of voices and ensure that the establishment doesn't completely dominate the appointment of judges.
However, the principle of many voices has descended into a cacophony of undirected and unconsidered questions. How do you ask a candidate how they are suited for a job unless you have defined what criteria you need for the work? How do you prevent questioning from descending into the partisan and petty unless you know where questions should go?
This is not unique to this particular round of JSC hearings. While this round should perhaps be more straightforward, as only one position is at stake, other JSC interviews have dealt with many positions across many courts, with criteria that the current JSC has not yet articulated.
This apparently awaits a workshop with the JSC and the new CJ, at which the criteria for regular judges, judicial leaders, and judges of the SCA and the Constitutional Court will be articulated.
The sheer size of the JSC is also a problem. Managing a process with a room full of lawyers and politicians is not an enviable task at the best of times
Will this solve the JSC’s problem? Probably not. The pull of party politics is powerful for politicians, too intense for some who find themselves on the JSC. A recent investigation found that commissioner Julius Malema violated parliament's code of ethical conduct when he asked a judge inappropriate questions during a JSC interview for a judicial appointment.
The influence of politics is also present in those who are there to represent the profession. Advocate Dali Mpofu found himself drawn into the questioning that was ruled out of order by the chair, which Mpofu insisted was purely to allow the candidate to express himself on rumours and conjecture. It did not seem entirely so.
More important, the issue of ambushing candidates in front of the JSC hours or days before they appear is a growing problem. The formal process followed is that written objections to a candidate must be sent to the commission before the hearing. The candidate can then deal with them in their interview, having seen them in good time. However, some members of the JSC, Mpofu notably, seem to believe they can take up matters they say are in the public domain and raise them with candidates for the first time in the interview.
The sheer size of the JSC is also a problem. Managing a process with a room full of lawyers and politicians is not an enviable task at the best of times. Only some commissioners are well placed actually to interrogate a candidate's record.
The time for introspection on both the process and the composition of the JSC seems to be here. The candidates for chief justice all expressed themselves on the need for attention to be paid to the governance of the judiciary. The composition and functioning of the JSC seem well overdue for reform, and should be included in this discussion.
• Alison Tilley is the co-ordinator of Judges Matter
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