The JSC needs a concrete path, in writing

The new chief justice will need to reform how the Judicial Service Commission operates if it is to retain its former standing.

The office of South Africa’s chief justice has been sitting empty for 143 days since Mogoeng Mogoeng’s term came to an end on 11 October 2021. Several people have asked Judges Matter – a project that monitors the judiciary, including the interviews for the position of chief justice – what to do about the Judicial Service Commission (JSC) in the face of trenchant criticism over its appalling recent interviews. 

Contrary to some of our colleagues, we at Judges Matter do not believe that the JSC is irredeemably ruined and should be set on fire like Parliament. Instead, we believe the new chief justice must be supported in leading thoroughgoing reforms to the JSC. 

After two days of relatively dignified interviews, the wheels came off on the third day when the JSC interviewed Gauteng Judge President Dunstan Mlambo. JSC commissioner and advocate Griffiths Madonsela led a strange line of questioning that seemed to be more interested in trafficking wild political conspiracies than testing the candidate’s fitness for the position. 

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But this was not enough. JSC commissioner and advocate Dali Mpofu followed, putting to Mlambo baseless sexual harassment allegations that Mpofu himself described as “whispers”. The chair, Judge Xola Petse, who is the deputy president of the Supreme Court of Appeal, allowed these questions to stew in the minds of everyone watching for several hours before ruling them inappropriate and ordering that they be expunged from the record. 

What stopped him from making such a ruling earlier? What led him to make the ruling at that exact moment? No one knows. Why? The JSC does not have any written rules regulating its procedure. This is a big problem for a commission that deals with allegations that have the potential to destroy people’s reputations and careers. 

At some point during JSC commissioner and EFF head Julius Malema’s questioning of Deputy Chief Justice Raymond Zondo, Minister of Justice and Constitutional Development Ronald Lamola shouted that Malema was a liar. True to character, Malema lost his temper and countered that Lamola was undermining him. This screaming match was over an issue that did not relate to the candidate in front of them, Zondo, but showed that there is no love lost between the former ANC Youth Leaguers. It also showed that it’s no longer possible to rely on unwritten rules that commissioners will act in a “gentlemanly” fashion. The JSC needs a written code of conduct for commissioners, as well as clearly defined standards by which to judge if questions may be permitted.

But as Parliament shows us, rules alone are not enough to make people act appropriately. There needs to be swift enforcement with tangible consequences. That means the JSC chairperson needs to understand the rules of the commission and be fearless in enforcing them. Nominating bodies must also take seriously who they put forward to represent them on the JSC, and possibly recall their representatives should the JSC raise concerns about them. Advocate and attorney associations need to act in the case of legal practitioners, and Parliament needs to do the same with regards to its members. 

Rules to follow

This leads us back to the very reason why the JSC sits in the first place: to assess the suitability of candidates to take up judicial office. Its mission is to test if lawyers are good enough to be judges. But who knows what factors it considers when it carries out this constitutional responsibility? The JSC needs written criteria for judicial appointments. 

This is not to say that the JSC must ask the same rehearsed questions of all candidates, but there could be common themes among the issues taken up with each of them. A candidate’s guiding philosophy when approaching complex cases, their understanding of the social determinants of crime, their knowledge of constitutional and administrative law, and their professional track record are all issues that could animate an interview. 

Judges Matter conducted a statistical analysis of five years’ worth of JSC interview transcripts. We found that the commission did not diverge wildly on the issues it takes up with candidates, so there is ample room to agree on written criteria. A set of criteria would also help the chairperson decide which questions are relevant and appropriate to put to candidates. 

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These are just some of the immediate reforms that would significantly improve how the JSC conducts interviews for judicial office. It is only the first step in getting the institution back on track. The commission is unique in that it is the only body in which the three arms of state come together to deliberate on who should preside over our superior courts. This diversity of perspective should be treasured and nurtured, as it is meant to improve the legitimacy of the judiciary. 

We at Judges Matter put these ideas forward in good faith. Our interactions with many of the JSC commissioners tell us that they are good people who are committed to the task. We dare not fail these commissioners by lumping them with those who have ulterior motives. The JSC needs to change now before it loses all legitimacy. 

Mbekezeli Benjamin is a research and advocacy officer at Judges Matter, a project that monitors the appointment of judges, their discipline for misconduct and the judicial governance system. You can follow the project on Twitter.

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