A general view at the interviews for South Africa's next Chief Justice at Park Hotel on February 01, 2022 in Sandton, South Africa. The shortlisted four senior judges for the top position include Deputy Chief Justice Raymond Zondo, Supreme Court of Appeal Judge President Mandisa Maya, Constitutional Court Judge Mbuyiseli Madlanga and Gauteng Judge President Dunstan Mlambo. (Photo by Felix Dlangamandla/Daily Maverick/Gallo Images via Getty Images)
A myriad opinion pieces and media statements have been written regarding the interviews conducted by the Judicial Service Commission (JSC), in the search for South Africa’s next chief justice. Many of them decry the way the JSC commissioners “grilled” the interviewee judges. Some go as far as labelling the interviews as a “corrupted process” and a “sham”.
Although there is a modicum of credibility and substance to the views that suggest that the decorum could have been better, the call for the removal of politicians altogether from the JSC is short-sighted. It is the antithesis of democracy. It unnecessarily perils us against the possibility in which the public would have no say (which it currently does through elected representatives) in considering the suitability of judges.
I will deal with these aspects later. As a departing point, however, it is necessary to give a brief constitutional outline of the anatomy and role of the JSC.
The JSC is a constitutional body established by section 178 of the Constitution of the Republic of South Africa, 1996. It plays an instrumental advisory-cum-consultative role in the appointment, the discipline and the impeachment of judicial officers, as we might observe for the first time in democratic history in the matter involving Western Cape Judge President John Hlophe.
On a proper look at the JSC’s composition, it is clear that it comprises senior judicial officers, practising lawyers from both the advocates and attorneys’ professions, a teacher of the law and lawmakers (politicians who are elected representatives). The senior judicial officers include the chief justice, who presides over the JSC, and the president of the supreme court of appeal.
The greatest number of the JSC commissioners are the politicians, who include members of the National Assembly, delegates from the National Council of Provinces, a cabinet minister and individuals (who may or may not be politicians) designated by the president in consultation with opposition parties in the National Assembly.
It appears that the fulcrum of the call and the debate on removal of the politicians from the august body is the allegation that the politicians in the JSC have “politicised” and “contaminated” the process by raising, by and large, political controversies and political issues with the interviewees.
But this is important. It is precisely why we do and ought to have politicians in the JSC. Questions on the political exposure of judges, public perceptions that may exist on their past adjudication of politically sensitive matters, views on gender and racial relations, and their general philosophical outlook on our democratic society are all important political questions.
As controversial as they may be, these political questions are important for our nation’s confidence in the judiciary and in democracy, especially considering our country’s history.
That history, which is not necessary to replicate in detail here, is replete with demonstrations of how the judiciary was an instrumental tool in adjudicating and enforcing unjust laws and injustices.
This can be traced many years before the establishment of the apartheid state, in 1948, to establishment of the Union in the early 1900s. It is also history that bears no elaboration that the judiciary in those years took the warm body form of predominantly white men. It is for that reason that our present democratic dispensation makes it a constitutional imperative that the judiciary broadly reflects the gender and racial composition of South Africa. Not only that, but the judiciary also presides, as the final arbiter, over a constitutional democracy with a political vision.
Much of that political vision is predicated on undoing the injustices of the past and achieving a “democratic and open society in which government is based on the will of the people and every citizen is equally protected by law”. Thus, questions such as those relating to public perceptions of how a judge or a court division adjudicates matters differently, depending on the litigants, have a serious import on that constitutional vision. The same way questions on a judge’s relationship with a president or a prominent politician have a serious bearing on the constitutional injunction that the judiciary must be independent and impartial.
It is also strikingly telling that the composition of the JSC in terms of the Interim Constitution of 1993 differs from that of the prevailing Constitution. The scales of composition in the Interim Constitution tilted towards having more lawyers than politicians, whereas presently there are more politicians than lawyers. One wonders how far judicial transformation would be had we elected to retain the composition as it was in the Interim Constitution, predominantly a club of lawyers. More so, when it has been seen how the legal profession has been slow to transform.
Whilst there is unquestionable value in lawyers determining the vocational suitability of their colleagues for judicial office, which judges and lawyers in the JSC so ably do, there is also great value in society being assured that it is represented by their elected representatives in the process of determining the suitability of judicial officers. After all, these judicial officers judge society and their roles have far-reaching implications for people’s lives.
The current composition arguably gives the public some comfort to the query posed by the poet-philosopher Juvenal in Ancient Rome. Juvenal satirically asked Quis custodiet ipsos custodes? (Who will guard the guards?) This ancient query would find expression in the present discussion as “Who will judge the judges?” In the many checks and balances that exist in our constitutional democracy, the JSC is also a necessary one and it must continue to comprise representatives that are elected by the people.
Again, there is a modicum of credibility to the view that the decorum could have been better. But that is a question of personalities rather than it being one of the principles behind the composition. The bodies that designate the politicians to the JSC must consider the conduct of these personalities or the JSC itself must reconsider its own processes against the need to maintain decorum.
The call for the removal of politicians from the JSC, however, appears to be emotionally spurious. It is an unfortunate conflation of the conduct of personalities versus the principles that undergird the composition. The call is short-sighted, and it throws the baby out with the bathwater.