Acting Chief Justice Raymond Zondo said on Tuesday that he did not believe the process through which judges are selected should be changed.
He was delivering the annual report for the judiciary, which covers the financial year up to 1 April. In the months since, the selection process has been the subject of mounting criticism and even legal challenge. Zondo acknowledged calls for reform when he replied to questions from the media.
“Over the years there have sometimes been people who have expressed views about the need for changes or reforms to be made to the manner in which judges are appointed in South Africa and, certainly I have heard of late, some people who advocate that there be reforms,” he said.
“But I would at this stage not call for any reforms in terms of the constitutional arrangement. I think it is more important that we try and not tamper with the Constitution unless, really, we get to a point where it is really serious.
“At this stage I would not be calling for any reform in terms of the manner in which judges get appointed.”
A round of interviews with aspiring apex court judges by the Judicial Service Commission (JSC) conducted in April was repeated in October after the Council for the Advancement of the South African Constitution (Casac) filed a high court challenge.
In June, Casac asked the court that the process that resulted in the initial recommendation of five candidates be set aside, arguing that it was unlawful because the JSC’s at times overtly political line of questioning flew in the face of the independence of the judiciary as guaranteed by section 178 of the Constitution.
In August, the JSC reached a settlement with Casac, made an order of the court, in which it agreed to conduct the interviews afresh. Casac also secured the release of the JSC’s record of deliberations, and later commented that it reflected that “there were no deliberations at all”.
The second round of interviews, chaired by Zondo and widely seen as far more decorous, did not entirely silence rumblings about the fairness of the process, because it resulted in the same five names being sent to President Cyril Ramaphosa for consideration.
Questions remain in the judicial fraternity about the JSC overlooking two of its finer minds in David Unterhalter SC and Alan Dodson SC for the second time. Casac has again, so far unsuccessfully, asked to be given the record of deliberations.
Asked for his view on the fact that Ramaphosa has yet to take his pick from the five names forwarded to him to fill two of the vacancies at the constitutional court, Zondo said he has seen longer delays and believed a decision would be forthcoming soon.
“The interviews were in October, and we have had November, we are early in December,” he said. “Compared to other occasions which have happened in the past, I think we have had much longer delays based on my understanding of what is happening in terms of the consultation process, I believe that the president will be making his decision quite soon.”
He did add that he hoped a number of vacancies at the high courts would be filled speedily.
“The appointments of judges in other courts, such as the various divisions of the high court, I am not sure what is causing the delay but I hope the president will be making the appointments without further delay,” Zondo said.
The annual report states that there are some 234 permanently appointed judges in the country, compared to a total of some 270 positions on the bench.
The pending appointment of a new chief justice, following the retirement of Mogoeng Mogoeng on October 11, has seen a number of unflattering remarks about the recent quality of apex court rulings and the administration of the court as observers mull the areas the new incumbent would need to address.
There has been concern in particular about the quality of dissenting judgments, including one of the last written by Mogoeng, but most notably about those penned in response to the application by a commission on state capture chaired by Zondo for a punitive contempt order against former president Jacob Zuma and his subsequent application for rescission of sentence.
Zondo said it would happen here and there that errors were signalled, but on the whole the standard of judgments was sound.
“The judiciary, including the judges of the constitutional court, appreciate that it is important to ensure that they produce quality judgments, and they most of the time get that right and produce judgments that are a product of hard work and a product of serious consideration,” he said. “But of course it will happen that from time to time somebody will pick up some mistakes but on the whole the overwhelming majority of judgments that are handed down by the constitutional court are not judgments that have mistakes or errors.
“The judges continue to take various steps to try and ensure that there is quality assurance in terms of the judgments they issue,” Zondo said in reply to the question from the media.
He also defended the constitutional court’s performance in terms of finalised cases, eve though it fell 9% short of its target of 70%.
The court dealt with 445 matters and finalised 273 of those in the 2020-2021 financial year.
“That was a 61% performance. Although it fell short of its target, there was a 10% increase in its caseload,” Zondo said.
The supreme court of appeal exceeded its target of 80% on finalised matters by 1%, and on applications and petitions managed a finalisation rate of 99%.
Zondo said the high court divisions had set themselves a target of finalising 75% of criminal matters and exceeded this by10%, commenting: “That was a great achievement.”
On civil matters, the high courts again exceeded their target, this time managing 84% compared with an objective of 64%.
Asked extensively about the number of complaints against individual judges, Zondo referred to figures given by the JSC, stating that in the past year there were 162 complaints, of which half have been resolved.
Zondo, who is one of four shortlisted nominees to become the next chief justice, remarked that the judiciary had withstood severe attack in the past 25 years since the adoption of the Constitution but must continue to act as its guardian.
In the past year, the line of attack has been centred most strongly on him personally and on the rest of the apex court, for respectively seeking and ordering Zuma’s imprisonment for flouting a directive that he cooperate with the state capture inquiry.
“I believe that over the past 25 years our courts have done very well in the performance of their role as the guardians of the Constitution. This has sometimes attracted serious attacks against the judiciary … there have been storms that the judiciary has gone through but it has managed to continue to play its role to protect and uphold the Constitution,” he said.
“We do not know for certain how the next 25 years will be but there is one thing we know. It is that the courts and the judiciary must continue to protect our constitutional democracy for the next 25 years and beyond.”