After years of pressure to clarify the considerations that apply to appointments to the bench, the Judicial Service Commission (JSC) has published a revised criteria for public comment.
The pressure stemmed, in part, from the fact that successive interviews were marred by questioning from commissioners that ranged from arbitrary to outright political ambush, prompting a legal challenge in April last year to the nomination of candidates for appointment to the constitutional court.
The JSC said it reviewed the current criteria, which dates from 2010, at a special sitting in early April, in other words mere days after Chief Justice Raymond Zondo took office.
The draft criteria spans 10 pages, many more than the current version, which cryptically sets out three main points for consideration, plus six additional questions.
The main points are whether the candidate is appropriately qualified and a fit and proper person and how their appointment would reflect the racial and gender composition of the country.
The third routinely gives rise to debate in interviews as to whether demographic considerations should trump others, and sees white male candidates, in particular, asked to justify their decision to seek appointment or promotion.
The new criteria elaborates on this requirement at some length. It explains the need for diversity not simply as number-driven racial redress but for the sake of having courts that can relate to lived experience of the litigants who appear before it.
“The ‘need to constitute a court which is … representative in respect of race and gender’ cannot be understood to rigidly or mechanically require that each court represents the races and genders in direct proportion to their share of the national population,” it reads.
“It is recognised that a balance must be struck: whilst a particular court may not represent the races and genders in direct proportion to their share of the national population, the racial and gender composition of the judiciary remains an important factor.
“Diversity is a quality without which the court is unlikely to be able to do justice to all the citizens of this country, but it is not an independent requirement, superimposed upon the constitutional requirement of competence,” it says.
“Properly understood, diversity is a component of competence — the court will not be competent to do justice unless, as a collegial whole, it can relate fully to the experience of all who seek its protection. It is for this reason that, if the court does not meet the standard set by the constitutional instruction, it will lack the confidence of the nation, and consequently lack legitimacy.”
The draft criteria elaborates on the first two requirements, noting that independence, integrity and legal skills are part of the considerations when assessing if a candidate is qualified and fit and proper, and stressing that candidates for specialist courts should have skills and experience in that field of law.
It further addresses the nature of the questions — and allegations — that can be put to candidates during their interviews.
This has long been a cause of complaint and the draft seems to speak directly to conduct on the part of commissioners in the recent past that clouded interviews, including those in February with the four candidates nominated for the post of chief justice.
In his interview, Gauteng Judge President Dunstan Mlambo was confronted, without warning and substantiation, with allegations of sexual harassment. Mlambo dismissed these as “nonsense” and “gossip”, adding that this seemed to have been raised in an attempt to derail his candidacy.
The JSC noted that when interviewing candidates its task was to search “primarily for positive qualities, not disqualifications”, though it could not ignore serious allegations that would disqualify a candidate.
But because of the potential for harming a candidate’s reputation and dignity, the JSC says, where such issues are raised this must be warranted by the fact that the allegation is so serious that it could render someone unfit for appointment.
It crucially adds that “unless sufficient substantiation for the allegation exists, the matter should not be raised with the candidate during the interview” and that before the question is put to the candidate, he or she “must be given an adequate opportunity to consider and address the allegation”.
Still regarding questions, the criteria stresses that candidates may not be asked questions that cannot be answered without them committing to say how they would rule if the question arose in litigation.
“Questioning of this kind is not compatible with a judge’s duty to approach issues entrusted to them for adjudication independently and with an open mind, as judges should not commit themselves to an answer before hearing argument.
“A candidate must decide impartially and so can offer no forecasts, or hints, that may indicate a disregard for the specifics of the particular case.”
There was an example of this predicament in an interview with a candidate for the Western Cape court earlier this month, when Judge President John Hlophe, who risks impeachment for misconduct, asked for her view on whether the Constitution should be amended to make explicit provision for land expropriation without compensation.
He withdrew after Deputy Chief Justice Mandisa Maya, who was chairing the interviews, cautioned the candidate, Acting Judge Alma de Wet, that answering might mean that she would have to recuse herself if allocated a case involving expropriation.
Judges Matter, which focuses on the appointments process for judges, welcomed the publication of the criteria, which is open to public comment for 30 days.
“The revised criteria set out the key qualities the JSC assesses during interviews, including legal skills and experience, integrity and independence, which are all vital but also the factors such as transformation of the judiciary. Significantly, the criteria also consider additional factors when appointing judges to higher courts, specialist court and leadership positions.”
It added that it was significant that the JSC had set out “explicit guidelines” for questioning as significant, including the provision that the chair may overrule inappropriate questions.
“The JSC however missed an opportunity to set out an enforcement mechanism of its guidelines, including when a commissioner repeatedly disregards the chair’s guidance. Nevertheless, we are pleased with the progress the JSC is making to improve the rigour and fairness of judicial appointments.”
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