There has been an outpouring of critical comment about the interviews of candidates for appointment to the office of chief justice in South Africa. Many now argue that the Judicial Service Commission urgently needs reform, writes Emeritus Professor Hugh Corder.
Observers may be surprised by the vehemence of the outcry and the degree of antagonism generated. But taking a look back at developments over the last year, combined with an analysis of the appointment process – particularly the role of the Judicial Service Commmission – the outcome isn’t that surprising.
Almost a year ago I argued that the stakes were high. In the intervening period several events have taken place that have further exacerbated tensions. One manifestation was the grossly unfair, and at times deplorable, nature of the public interviews for the position. The unfolding drama also underscored weaknesses that had been crying out to be fixed.
I argue that at least eight forces have played a significant role in bringing South Africa to this low point. Four relate to developments in the country. Four to the process of appointing the Chief Justice, in particular the composition of and role played by the Judicial Service Commission.
What’s gone wrong
The country’s superior courts and specific judges have come in for concerted attack over the past 12 months.
Their political prominence has increased because disputes aren’t being resolved through political processes. Judges have done what the Constitution requires of them. But party politicians have resented being shown to have acted unlawfully. Many have lashed out at the courts in seeking to shift the blame.
Second, the impact of the Commission of Inquiry into State Capture, headed by Deputy Chief Justice Zondo which has been running for four years. The hearings provided an almost daily exposure of corruption and abuse of power by those in authority. Given the number of politicians implicated and the extent of their unlawful enrichment, this influential lobby has every reason to resent their exposure. And to try and undermine the independence of the courts.
Third, the last years of the tenure of the immediate past Chief Justice Mogoeng Mogoeng were marked by controversial forays into highly contentious political questions. These included comments about the Israel/Palestine issue, and the effectiveness of vaccines against the COVID-19 virus. His public utterances on these two issues raised questions about the potential influence of irrationality in his decision-making.
Fourth, more narrowly, his woeful lack of leadership. This was evident in his chairing of the Judicial Service Commission towards the end of his tenure, so much so that its interviews for the Constitutional Court of April 2021 had to be set aside and rehearsed. More harmfully, it set the tone for the interviews for Chief Justice.
Flaws in the system
There has been a clear attempt to undermine the role of the Judicial Service Commission by some who sit on it.
Some have clearly and wilfully pursued personal and party-political agendas in their questioning of candidates which the Acting Chair, Justice Xola Petse, failed fecklessly to regulate. He ought, at least, to have been more alert and active in ruling certain questions and lines of attack out of order, on the grounds of lack of respect and ensuring ethical process.
The choice of some of the representatives on the Judicial Service Commission by Parliament, the President, and the practising legal profession defies any form of rational responsibility and accountability. Despite warnings well in advance, none of these constituencies acted to remove their representatives who, at best, failed utterly to comprehend their role on the commission.
This points to weaknesses that have never been addressed. For example, despite frequent appeals, the Judicial Service Commission has consistently refused to agree on the criteria for the appointment of judges. This includes the Chief Justice position.
This failure widens the scope for aberrant commissioners to indulge in their own concerns and prejudices and hamstrings the Chairperson.
Beyond the composition of the Commission, the Chief Justice appointment process as a whole has been a dismal failure.
It was initiated about a year too late and it was needlessly convoluted and exploited by those seeking to undermine the judiciary. Finally, the interviews were both uneven in quality and random in approach, and worst of all, the Commission clearly failed to understand its role.
It was required to assess and evaluate each candidate. And then to pass on its recommendations.
The Constitution in section 174(3) mandates the President to appoint the Chief Justice after consultation with the Judicial Service Commission. Common sense indicates that this means that the President must consult but retains the discretion rationally and justifiably to differ from any advice given.
Here the Judicial Service Commission failed dismally yet again. Instead of giving its views on the appointability of all four candidates, it rushed into the public domain to announce breathlessly that its choice was one of the four. This appears to have been done before the President had been informed.
The consequence is that, while the President is in law entirely entitled still to select any of the four as the next Chief Justice, in political terms his scope of decision is constrained.
The process has yet to run its course. Given this litany of appalling errors few would argue that there has been no longer-term damage to both the image and the substance of judicial independence.
No matter how worthy the person appointed, their tenure will be tainted initially by the fallout from the Judicial Service Commission’s clear abandonment of its constitutional mandate and of any pretence at fair play and respect for human dignity.
The widespread and relatively non-partisan outcry generated by the process shows that the rule of law and the Constitution have some purchase yet. However, immediate action is needed to review and remedy the problems identified. As I have argued before, at least the following elements need to be considered:
Mandatory training about the role expected of Judicial Service Commission members must be standard practice before the assumption of office. This must be done, in particular, to create a culture of respect for the dignity of those subject to its remit, and for the standing and authority of the Chair;
Emphasising an explicit power of recall of errant and recalcitrant members of the Commission by their constituencies;
Increasing the diversity and expertise of its members through appointing the Presidential nominees only from relevant bodies in civil society;
Eliminating the presence of television cameras from the public interview process, and relying only on radio. This will ensure transparency. But it will remove the temptation for populist grandstanders to play visually to the gallery;
Agreement on universally recognised criteria according to which judges should be both appointed and disciplined; and
Seeking every opportunity to ensure that a culture of respect, tolerance, and non-partisanship becomes established in every aspect of the operations of the Judicial Service Commission. Here the role of the Chair is critical.
All these steps can be taken speedily and administratively. It may also be salutary to review the membership of the Commission. It may be wise to consider reducing the number of MPs while maintaining representation from opposition parties; and increasing the number of judges by two – one from each of the Constitutional Court and Supreme Court of Appeal – to be elected by the full complement of justices in each court.
Such a change would require a constitutional amendment, and this may be too remote a possibility at this stage.
These are starting points: the model doesn’t need to be abandoned entirely. It has some commendable features. No rules and laws can prevent manipulation by a cynical, well-resourced, and irresponsible person resorting to rank populism. But South Africa needs to ensure that the space for such self-serving and destructive conduct is minimised.
Hugh Corder, Professor Emeritus of Public Law, University of Cape Town.