The Judicial Service Commission (JSC) has given assurance that it will heed growing pressure to articulate the criteria it applies to assess candidates for judicial appointment — once the new chief justice is appointed.
JSC spokesperson Dali Mpofu said it was decided in October last year that the commission would have a workshop to discuss the issue.
The JSC has been under growing pressure to do so, after being taken to court last year to have the recommendations that flowed from its April interviews with constitutional court candidates set aside.
“The only reason why that workshop has not yet happened is that we were waiting for this process of the chief justice,” Mpofu told a media briefing on the sidelines of the JSC’s interviews with the four shortlisted candidates for the position. “Some of us felt that it would make more sense if it is done with the new chief justice, that person after all is the person who is going to be chairing the JSC, so it would make sense to have that person running the workshop, so to speak.”
Mpofu listed the main criteria as legal, administrative and leadership skills, and said these applied to the current process as well as to the selection of all judges.
“We are looking for a leader of the bench but a leader on the bench, but we are also looking for administrative skills and we are looking for leadership, people skills, because you are managing people and egos and all sorts of things.”
He said the JSC believed it was not only necessary to craft the criteria it applied but to communicate it, and this would be done over the next few months.
“This is a matter on which we wish to interact with the public quite a lot in the coming few months. To the extent that the criteria are not clear, they must be made clear, even if they have been made clear before.”
Mpofu said the Constitution was the starting point for the process, although he personally believed that when it came to representivity, the criteria were not broad enough “because they only talk about gender and race whereas there are many other areas of diversity in society”.
The Council for the Advancement of the South African Constitution (Casac) took the recommendations of the JSC on review last year after a round of interviews with aspirant constitutional court judges in April, chaired by then chief justice Mogoeng Mogoeng, descended into blatant politicking.
Casac asked the high court to rule that the process was irrational, and demanded that the commission release a recording of its deliberations on the suitability of the candidates in question. After a court settlement, the JSC repeated the interviews in October.
But the fresh deliberations resulted in the same five candidates being recommended to President Cyril Ramaphosa, and questions persist in legal circles as to why the commission again overlooked David Unterhalter and Alan Dodson. Both will again be interviewed for vacancies at the constitutional court this coming April.
The appointment of the chief justice is the president’s prerogative, and he does not have to heed the recommendations of the JSC. The decision by Ramaphosa to compile a shortlist with the help of a special selection panel and to have public interviews with all candidates is a break with tradition.