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The Republic of South Africa (SA) is a country that has been through a lot of strain and impediments, and this has left some sort of trauma on the whole country. It is important to take note of the past injustices when seeking to develop the laws of the country, irrespective of which law it is – it may be a law regulating dogs, or a law regulating the succession of estates. The injustices SA endured in the past are now common knowledge.

Judicial independence is an extremely important principle for the democracy of a country (L Siyo and JC Mubangizi ‘The independence of South African judges: A constitutional and legal perspective’ (2015) 18 PELJ 817). This ultimately results in the judiciary being just as important, for the smooth operation of a country. In considering the importance of the judiciary, one also ends up looking at the processes of appointing people to serve on the Bench (judicial appointment). In SA, the appointment is made by the President on the recommendation made by the Judicial Service Commission (JSC) (PE Andrews ‘The South African judicial appointments process’ (2006) 44 OHLJ 565 at 567 – 568).

The JSC was established in terms of the Constitution to play a vital role in the process of appointing judges to the courts (Andrews (op cit) 568).

Although the JSC has been lauded for its transparency when conducting interviews for candidates to serve in the judiciary, it has been involved in many legal cases and media scrutiny in recent years (MK Radebe ‘The unconstitutional practices of the Judicial Service Commission under the guise of judicial transformation: Cape Bar Council v Judicial Service Commission [2012] 2 All 143 (WCC)’ (2014) 17 PELJ 1196 at 1202; K Malan ‘Reassessing judicial independence and impartiality against the backdrop of judicial appointments in South Africa’ (2014) 17 PELJ 1965 at 1974 – 1981). This article seeks to deal with the issues surrounding the JSC.

The basis on which the JSC operates

South Africa is governed by a constitution that was drafted with the intention of shifting the country from a parliamentary sovereignty to a constitutional supremacy (MD Moremi A critical analysis of political influence on judicial appointments process in South Africa (LLM dissertation, North West University, 2019) 49).

The smooth operation of the judiciary ensures that society trusts and has confidence in the judiciary and that there is proper administration of justice (MD Moremi (op cit) 49), which highlights the importance of the work the JSC is doing.

The independence of the judiciary has been described as the ‘ultimate shield against the incremental and invisible corrosion of our moral universe’, so overthrowing that shield will entail the overthrowing of the foundations of the Republic’s democracy (WH Gravett ‘Towards an algorithmic model of judicial appointment: The necessity for radical revision of the Judicial Service Commission’s interview procedures’ (2017) 80 THRHR 267 at 268).

The protection of judicial independence is a process that requires more than just mere visible independence by the judiciary. Such independence begins with the process of appointing judges (Gravett (op cit) 268; Judges Matter ‘New research on the JSC appointments process shows cause for concern, but there is hope’ (www.judgesmatter.co.za, accessed 27-1-23)).

In a democratic republic such as SA, the judiciary plays an extremely important role in the protection and upholding of the basic human rights of the country’s citizens. Judicial independence is enforced by s 165 of the Constitution (Moremi (op cit) xii).

The JSC is a body that was established by the Constitution, which was founded by a democratic and sovereign state. This is the foundation of the entire judicial appointment process and the founding principles of the Republic (see s 1 of the Constitution).

The South African system of judicial appointment recognises the need to appoint judges that will protect and uphold the independence and legitimacy of the judiciary (Pierre de Vos ‘Time to talk about the appropriate political role of the JSC’ (https://constitutionallyspeaking.co.za/, accessed 27-1-2023)).

Fairness is an essential value, which not only the JSC must have but must also be seen to exercise (De Vos (op cit)). Political interference and any other detrimental intrusion to the operations of the JSC ultimately threaten social justice and judicial independence, among other essential qualities that govern the judiciary (Moremi (op cit) 2).

The JSC would not make recommendations for the appointment of people who will be expected to be impartial in doing their work if it was not expected to act impartially in the process of making such recommendations. It is essential for the JSC to operate without external influence – especially not politics, because law and politics do not mix.

A look at the transgressions of the JSC

Judicial appointments in SA are inherently doomed to be manipulated by politics. This is because at the top of the appointment power-chain is the President of the country, who is a political figure, while on the other hand rests the Minister of Justice (another political figure) (Moremi (op cit) xi).

The Commission’s interviewing processes have been described as a charade, a sham, intrusive in nature and interrogative, among other and negatively descriptive phrases, that speak to the commission’s lack of moderate ethical standards (C Rickard ‘How biased commission picks judges’ (www.iol.co.za/, accessed 27-1-2023); Gravett (op cit) 271).

The JSC has been struggling for several years now. This does not in any way imply that it has not been successful in executing its duties. There have been issues identified, issues that the JSC has gone through and is still facing (Judges Matter ‘Issues facing the judiciary in 2021’ (www.judgesmatter.co.za, accessed 27-1-2023)).

The JSC has its own flaws. For instance, it has been unable to inspire confidence that it acts in the best interests of an independent judiciary (Gravett (op cit) 268). Politics has been a long-standing issue, which the JSC has had to deal with. Politics include inequality and the violation of human rights as issues the JSC has had to deal with.

The influence of politics on the Commission raises questions as to the legitimacy of the JSC and indicates that the Commission is materially politically influenced (Gravett (op cit) 268 – 269).

During early 2011, the JSC was deemed to have acted unconstitutionally by the Cape Bar Council, in a matter that was in front of the Western Cape High Court (Radebe (op cit) 1196). The matter involved the failure of the Commission to fill vacancies at the Western Cape High Court, including failure to provide reasons for its recommendations: The commission argued that it ‘was not legally required to provide reasons’ (Radebe (op cit) 1196), but its conduct was nonetheless deemed to be unconstitutional by the court.

The JSC has acted blatantly unfairly during interviews, on top of a ‘lack of transparency in its selection criteria and evaluation processes’ (Gravett (op cit) 269). It may be argued that missteps are inevitable, but so is change – a change in the appointment processes of the JSC.

During late January 2021, the JSC released two shortlists. Due to the COVID-19 pandemic, the sittings in April and October 2020 were cancelled (Judges Matter (op cit)). This resulted in the JSC having to sit for ten days interviewing 88 candidates for the positions that were left unfilled between September 2019 and 2021 (Judges Matter (op cit)).

In early 2022, the JSC was ‘accused of playing politics and overstepping’ the boundaries of the appointment of SA’s next Chief Justice (B Chimombe ‘JSC accused of playing politics and overstepping its mandate regarding Chief Justice role’ (www.sabcnews.com, accessed 27-1-2023)). The political party, the Congress of the People (COPE) and the President of the country (Cyril Ramaphosa) have stated that the JSC had ‘exceeded its mandate by recommending Justice Mandisa Maya for the position of Chief Justice’ (Chimombe (op cit)).

Conclusion

The judiciary plays an essential role in the development of the country’s laws, the advancement of human rights, as well as the protection and fulfilment of such human rights. With this essential role to fill, the right people ought to be appointed into the judiciary – hence the need for the appointment process to be protected.

The Constitution undoubtedly brought major changes to the country but moving forward is imperative – the JSC has been struggling and needs serious improvement in its operational procedures.

The issues surrounding the JSC have been outlined above, it is important to note that the JSC’s missteps do not supersede the good work that the Commission has done over the course of time.

Mpho Titong LLB LLM (NWU) and Kagiso Matong LLB (NWU) are law graduates in Mafikeng.

This article was first published in De Rebus in 2023 (March) DR 14.