Renewal: Chief Justice Raymond Zondo has made changes after judges were harassed by politicians in previous sessions. Photo Paul Botes
For two weeks, beginning on Monday, the Judicial Service Commission will interview 42 candidates for 20 vacant posts in South Africa’s superior courts. But the most crucial work it will do does not appear on the official programme.
The JSC brings together 23 members of the three arms of government (parliament, the executive and the judiciary) in one room and gives them equal voice and equal votes. And the weighty task of chairing such a large and complex body, with double as many politicians as there are lawyers and judges, rests on the shoulders of Chief Justice Raymond Zondo.
He is completing a year as chair, during which he has tried to steer the JSC towards a greater focus on its key mandate of judicial appointments, while ensuring it treats candidates with respect and dignity.
His reform mission was prompted by the shambolic interviews of April last year, which saw sitting judges being harassed by politicians like Economic Freedom Fighters leader Julius Malema. Judge Keoagile Matojane was attacked for his ruling against the EFF, while Judge Dhaya Pillay was called “nothing but a political activist”. This led to the Council for the Advancement of the South African Constitution demanding the JSC’s interview process be set aside.
In the aftermath, Zondo called commissioners to order, and the sitting in October last year was much improved. However, February’s chief justice interviews were shambolic, with Zondo the victim this time. It was probably then that he vowed to reform the process.
On the first day of the next sitting in April, the JSC announced two significant changes: advocates Sesi Baloyi and Kameshni Pillay would replace Griffiths Madonsela and Dali Mpofu and its rules committee would be tasked with reviewing and updating its criteria, a key problem in the process. The change in that session was marked.
There were no updates in June, when the JSC interviewed Mandisa Maya for deputy chief justice.
While no details of the agenda are available for Monday, finalising criteria probably will be a priority. An announcement on criteria will also be a crucial test of whether Zondo’s influence on the JSC is yielding results.
The October interviews were also expected to fill the final seat on the constitutional court’s 11-member bench but, in April, the JSC decided it would leave the vacancy unfilled instead of recommending the well-regarded Judge David Unterhalter.
In July, the JSC said it had failed to find the bare minimum of four candidates to shortlist, as required by the constitution. The JSC has itself to blame for this — because of its chaotic interviews, many potential candidates would rather decline nomination and avoid the humiliation.
In the 2012 interview round, where Zondo beat Maya for a spot on the ConCourt, fellow candidate judge Robert Nugent said as much, urging the JSC to do some introspection.
On Tuesday, 11 candidates will be interviewed for five vacancies on the supreme court of appeal. Known for its efficient delivery of judgments, the SCA has had its fair share of problems,including racist and sexist bullying among its judges and an inept administration, says its most recent president, Maya.
Added to that is the rapid turnover of judges in recent years for a court which deals with the largest volume of complex cases in the country and must provide guidance on the law for other courts. Fortunately, all the candidates on the shortlist have significant judicial experience, including having acted in the SCA. Maritzburg Judge Piet Koen has the most experience at 16 years on the bench, while Pretoria Judge Daisy Molefe has the least at nine years.
In stabilising the SCA, JSC’s task will be to select judges who will bring the necessary experience and expertise and could usher in the birth of a new, diverse and stronger SCA.
Later next week, the JSC will make several appointments to leadership positions in the judiciary. Joburg judge Norman Manoim is the sole candidate for judge president of the competition appeal court. He spent 19 years as head of the Competition Tribunal and is well-regarded in competition law circles.
Supreme court of appeal judges Dumisani Zondi and Baratang Mocumie are in a fierce competition to head up the electoral court. With the 2024 elections fast approaching, they will need to hit the ground running. Mocumie has a slight advantage as the electoral court has never had a woman as judge president.
With Maya’s departure from the SCA, there are no women permanently heading a superior court. This means the Heads of Court, a powerful statutory body chaired by the chief justice and responsible for crafting judicial policy, is now all men. The JSC will be under some pressure to rectify this situation as 113, or over 40% of South Africa’s 254 judges.
On Wednesday, three male candidates will interview for judge president of the Limpopo high court. This might not matter, considering deputy judge president Matsaro Semenya is a woman but the JSC will weigh this factor in light of the pressure to diversify the leadership of the judiciary.
On Friday, three candidates will interview for judge president of the KwaZulu-Natal high court. In April, current acting judge president Mjabuliseni Madondo was the sole candidate but was unsuccessful after being grilled on his self-published book many commissioners believed was homophobic. He’s now joined in the race by judge Esther Steyn, a former academic, and judge Thoba Poyo-Dlwati, the first woman president of the KwaZulu-Natal Law Society, although Madondo beats both on judicial experience.
The JSC will have to resolve another awkward situation before its last day of interviews when it will tackle four candidates for a vacancy on the Western Cape high court.
Judge President John Hlophe is constitutionally required to be in the room or to send an alternative, but last week’s Judicial Conduct Committee decision to recommend an investigation against him and his deputy Patricia Goliath triggers the JSC’s duty to advise President Cyril Ramaphosa on their suspension.
This would be in addition to the JSC’s July decision to recommend Hlophe’s suspension pending impeachment, which still needs to be confirmed by the president.
The JSC could simply say it has not yet taken a decision on the second ground of suspension but it would be hard-pressed to explain why it has not done so, and what steps it intends to take to deal with the Western Cape high court headache.
The sitting will be a watershed for the JSC and many eyes will be on Zondo and whether he is cementing his position as head of the judiciary and chairperson of the JSC.
The JSC, as an institution, is also in the spotlight in terms of its functionality but, more importantly, its role in building a capable judiciary with judges of integrity, able to withstand the pressures of judging in a turbulent constitutional democracy.
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