None of the four candidates for a vacancy at the apex court were in favour of merging it with the supreme court of appeal
In many ways, the Judicial Service Commission’s (JSC) sitting from Monday, 8 April, to Wednesday, 10 April, is a damp squib.
With only 14 candidates to be interviewed for four vacancies at various superior courts, including the Constitutional Court, this JSC sitting will be the least productive since the Covid-19 pandemic. But it would be wrong to write it off. There are still many reasons why it’s important to pay attention to the hearings this week.
Firstly, the JSC will be hoping to fill the last remaining vacancy on the constitutional court, the highest court in the land. The vacancy arose when Justice Sisi Khampepe retired. The court has not operated with a full complement of judges since 2016 and has had to rely on the regular appointment of acting judges.
Of the five candidates shortlisted for the post, two are judges, two are practising advocates and, for the first time in 25 years, a law professor is on the shortlist. Both Judges Tati Makgoka and Ashton Schippers are senior justices of the Supreme Court of Appeal, with a string of judgments to their name. Advocate Alan Dodson SC spent five years serving as a judge of the land claims court before going back to practice.
While they have no judgments to their name, both Advocate Matthew Chaskalson SC and Professor David Bilchitz are widely recognised as constitutional law experts. The son of late Chief Justice Arthur Chaskalson, Chaskalson’s publications — including the ‘bible’ Constitutional Law of SA — provided some of the early ideas that framed post-1994 constitutional law. With a B1 rating from the National Research Foundation, Bilchitz has had global recognition for his publications on human rights and constitutional law.
It will be interesting to see how the JSC assesses the experience of judicial candidates without written judgments. In recent times, and with the help of the appointment criteria adopted in April 2023, the JSC has focused strongly on candidates’ written judgments. The JSC assessed their rigour and legal reasoning, which is crucial. Unsurprisingly, several candidates came up short and were not appointed. This is not a bad thing at all. After all, the JSC process should yield only the best of the best judges. Judges Matter will be using a new scorecard to assess how the JSC implements these criteria.
However, outside of written judgments, it’s not entirely clear whether the JSC is able to assess the broader experience of candidates who come before it. For example, how would the JSC assess the experience of a law professor with a huge publication record but who has never set foot in a court of law? Or a senior advocate who has spent all his career in court but is without a single publication or written judgment, versus a senior judge who has dozens of judgments to their name? The written criteria provide a crucial tool to start with, which the JSC could supplement with the wisdom of those of its members who are in academia and those in legal practice.
The JSC has received harsh criticism for using criteria in the public interviews stage of the appointment process, but not in the deliberations or final selection stages. This came into sharp focus during the October 2023 interviews for the supreme court of appeal, where 10 candidates were interviewed for four vacancies. Most observers agree that the JSC largely stuck to its written criteria when interviewing the candidates. It was clear that most candidates were appointable, and the JSC would have a tough time deciding on the final four. In a strange twist, and following deliberations that went on for three hours, the JSC decided to only appoint two candidates and leave the other two vacancies open. Everyone was shocked.
The NGO Freedom Under Law sued the JSC to review and set aside the JSC’s bizarre decision not to fill the two vacancies when it had appointable candidates available. It emerged in transcripts the JSC filed in that litigation that, during deliberations, the JSC jettisoned the written criteria, and the process became a free-for-all. Commissioners raised concerns that they had not raised with candidates during the interview stage, and shockingly used those issues to disqualify candidates they did not like. This is a key weakness in the process which the chief justice and other commissioners must urgently remedy as soon as this week’s interviews.
Other weaknesses in the process include a lack of probing on questions of integrity. In a joint submission by DGRU and Judges Matter, we argue that the JSC could improve this aspect by including two additional questions in its questionnaire, which specifically address questions of integrity, including whether a candidate has been involved in disciplinary proceedings or appeared in criminal court. This is a second reason to pay attention to the JSC interviews.
A third reason is the specific courts for which the JSC will be looking to fill vacancies. In addition to the constitutional court, the JSC will be interviewing candidates for the electoral court and the land court, as well as the North West high court.
The electoral court has not operated with a full complement of judges since 2021. Meanwhile, its workload has increased exponentially. This year alone, it has faced several big cases, including the ANC’s fight with the upstart uMkhonto weSizwe Party, the DA’s case to allow more polling sites abroad, and Jacob Zuma’s disqualification from contesting the 2024 elections. This caseload is set to increase the closer we get to the election and even after, considering that independent candidates will be contesting the national election for the first time. It is therefore crucial to get a judge appointed to bolster the court’s capacity.
Two candidates have been shortlisted: Judge Leicester Adams and Judge Seena Yacoob. Both are judges of the high court and have served as acting judges in the electoral court (Adams sat in the ANC vs MK case, while Yacoob will sit in the Zuma disqualification case). Both are highly experienced judges with a long track record of reported judgments. It will be tough to choose between them.
The land court is a crucial institution in the struggle for land justice in South Africa. It has nationwide jurisdiction and is one of few courts that try to come to where the people are. Most of the court’s users are vulnerable rural communities seeking restitution for land dispossession, or secure tenure on land they have lived on and worked for generations. Recent changes to the law have given the land court some permanency, a wider scope of focus, and additional powers. It is why the JSC is hoping to fill the position of judge president of the land court, which has been vacant since 2012.
Four candidates have been shortlisted for this judicial leadership post: supreme court of appeal Justice Zeenat Carelse, land claims court Judges Susannah Cowen and Muzikawakhelwana Ncube, and high court Judge Shanaaz Mia. All four candidates have wide experience in land law, with some experience in leadership.
Carelse has adjudicated land cases since 2009 and served a six-month stint as deputy judge president of the Johannesburg high court, running one of SA’s busiest courts. Ncube served several stints as acting chief magistrate of the region including Durban and the KZN South Coast. Since her appointment in 2022, Cowen has led several initiatives to improve the land court’s efficiency, including digitising backlog cases and recruiting interns to bolster the court’s research capacity — at no cost to the taxpayer. Mia served as a senior magistrate and is active on the high court’s committee system, which runs the court.
The JSC is under considerable pressure to appoint a woman to the judge president post, noting that women only occupy four of 16 seats on the powerful heads of court forum, which takes important policy decisions on behalf of the judiciary. As Judges Matter has consistently argued (which we again reiterate in our latest submission), it impoverishes the quality of judicial policy and decision-making if 40% of the judiciary is excluded from the decision-making table.
While the week has been shortened by the JSC’s politician members who are eager to hit the campaign trail, it is no less important. The JSC is faced with crucial decisions on the appointment of judges to the apex court, two specialist courts and a high court. There are also crucial questions on how the JSC implements its judicial appointment criteria, especially following years of criticism. It’s worth paying attention.
Mbekezeli Benjamin is an advocacy manager for Judges Matter, a civil society watchdog of the judiciary.