Chief Justice Mandisa Maya. (Photo: DispatchLive)
Amid political controversy, the Judicial Service Commission (JSC) is set to meet next week, from 7 to 16 October, for a marathon round of interviews.
With 54 candidates for 21 vacancies at the supreme court of appeal (SCA) and various high court divisions across South Africa, this will be the largest round of interviews since the April 2021 Covid-19 round of 88 candidates.
Besides the sheer volume of the work set out for the JSC, several dynamics at play will have a significant effect on the course of our judiciary for the coming years.
In some ways, this is a “new” JSC. How so? It will be the first JSC chaired by the new
chief justice, Mandisa Maya. Although she was previously a member of the JSC from 2017 to 2022 and has chaired the JSC on several occasions in retired chief justice Raymond Zondo’s tenure, it will be the first time she is firmly on the saddle in her own right.
Maya’s previous chairing of the JSC (in October 2023 and prior) commanded the respect and cooperation of all commissioners, leading to efficient and effective interviews — which ended way before midnight, as would often happen previously.
But this new JSC might be a tricky horse to ride.
After the May elections, parliament replaced seven of its 10 representatives on the JSC,
which make up a third of the 23-member body. Only the ANC’s Kenny Mmoiemang, the Democratic Alliance’s (DA) Glynnis Breytenbach and Economic Freedom Fighters’ (EFF’s)
leader Julius Malema are returning.
National Council of Provinces chairperson Refilwe Mtsweni-Thipane is also an old hand on the JSC; in her previous role as premier of Mpumalanga, she would regularly attend her province’s interviews and ask the tough questions. Will she still be as effective in her new, permanent role as commissioner?
Another JSC member trading seats is former judge president and now uMkhonto weSizwe (MK) party leader, John Hlophe, whose eligibility on the JSC is currently subject to court proceedings. After the DA won an interim interdict barring his participation pending the full review of parliament’s decision to designating Hlophe as a member of the JSC, the commission had to urgently meet to decide on the MK party’s request for a postponement.
This would prove to be Maya’s first test as chair of the JSC. She passed the test; hours after the request came, she convened an urgent meeting of the JSC which, by a vote of 20 to 1, resolved to decline the postponement and forge ahead with the interviews.
Undeterred, the MK party sought an interdict (which, at the time of going to print, had not
yet been decided).
The speed at which the JSC convened — and the near unanimity of its decision — bodes well for the upcoming interviews and Maya’s chairing of them. This will be vital because the JSC needs to restore its credibility within the judiciary, the legal community and the public.
For the first time since 1994, the parliamentary delegation to the JSC is not dominated by the ANC, which has only five of 10 of the seats (the DA has two, and ActionSA, EFF and MK have one each).
The MK party argues that the interdict against Hlophe means the opposition voice on the JSC is weakened, in violation of section 178(1)(h) of the Constitution, which requires that three of the six MPs from the National Assembly be from opposition parties. The JSC dismissed this argument, and it will now be decided in court, as the MK persists with an urgent bid to interdict the interviews.
Several of the new MPs on the JSC are trained lawyers — including the ANC’s Mwelo
Nonkonyane, Fasiha Hassan, Soviet Lekganyane and the DA’s Nicholas Gotsel.
Others are senior politicians with a proven commitment to constitutionalism and
protecting democratic institutions, including ActionSA’s Athol Trollip and the ANC’s
Mtsweni-Thipane.
While there are growing calls for the reduction or removal of parliamentarians on the JSC, it is clear that the drafters of the Constitution envisioned MPs as public representatives, playing a crucial role in representing the broader interests of court users who need access to justice. They also provide democratic legitimacy to the judicial appointment process.
It is time that MPs leave aside their narrow party-political interests and assert the interests of South Africans who want the best quality judges serving in an independent and effective judiciary.
The JSC needs to be seen to be pushing ahead with the reforms initiated under Zondo, including applying the written criteria the JSC adopted in 2023 and working on a code of conduct for commissioners.
This is vitally important, because the antics of commissioners at the JSC are causing harm to the courts, particularly the constitutional court. Top candidates refuse to risk the humiliation that has become the JSC interviews, where narrow political agendas are nakedly pursued instead of a fair and competent assessment of suitability for judicial appointment.
There will be no interviews for the apex court in this round, because the JSC, after twice advertising, has not attracted the bare minimum of four candidates to interview. South Africa’s top court has now operated without a full complement of permanent judges since 2016.
Six candidates are shortlisted for three vacancies on the supreme court of appeal. Five of the six are returning after unsuccessful interviews in April 2024, while KwaZulu-Natal High Court Judge Mahendra Chetty will be coming for the first time. Through retirements, promotions and two deaths, the SCA has lost more than 200 years of judicial appellate experience. While the appeal court remains the country’s best-performing court, serious concerns are emerging about the quality of its jurisprudence.
This year, the SCA issued a disturbing series of conflicting judgments on the same point (the test for appealability of interim orders). The JSC is therefore under serious pressure to select the most experienced candidates to fill the experience gap.
There are also several leadership positions to be filled. Deputy Judge President Edwin Molahehi is the sole candidate for judge president of the labour court, which he has been temporarily holding since February 2024.
In contrast, there are seven candidates for judge president of the Western Cape High Court, including current Acting Judge President Patricia Goliath, who filed a judicial misconduct complaint against Hlophe.
It is unusual for there to be so many candidates for a leadership position in the judiciary, because judges often cohere around one or two candidates who they have trust in.
The fact that this is not the case in Western Cape High Court speaks to the deep divisions in the court, which were largely fomented by the impeached judge president Hlophe. At the time of his impeachment, 10 Western Cape judges had filed a judicial misconduct complaint against a fellow judge.
Hlophe’s lawyer had also filed a complaint against several Western Cape High Court judges. Hlophe himself was facing a tribunal investigation for assaulting another judge, and a judicial conduct inquiry over using foul language against an advocate.
The new judge president will therefore need to rebuild trust, collegiality and cohesion among judges, and restore the faith of the legal community and the wider public. Maya would also need to formulate an intervention plan.
There will also be several interviews for deputy judge president, the second-in-command in the provincial high court divisions. Three candidates are shortlisted for the inaugural deputy judge president of the land court. Gauteng Judge Shanaaz Mia leads the pack in her decade’s experience as a judge.
Fellow Gauteng Judge Susannah Cowen is credited with leading several initiatives to improve the functioning of the court,including rolling out the court online project, and finalisation of old cases laying dormant for years. KwaZulu-Natal Judge Thomas Ncube — a former rural magistrate and the only male candidate — closes the list of fierce contestants.
Three candidates are running for KwaZulu-Natal deputy judge president, including Judge Nkosinathi Chili, the current presiding judge in the long-running Zuma corruption trial. He recently dismissed Zuma’s latest bid to remove prosecutor Billy Downer. With a decade of judicial experience, Judge Zaba Nkosi is the most experienced of the three.
The only woman candidate, Judge Jacqueline Henriques, will probably face tough questions from the JSC over her delayed judgments (including one that took her two years to deliver). The deputy judge president helps the Durban node of the KwaZulu-Natal High Court, which is undergoing renovations and is scheduled to reopen in 2025.
Two candidates are shortlisted for Mpumalanga deputy judge president, based in the Middleburg node. Judge Takalani Ratshibvumo spent two decades as a magistrate before his elevation to the high court in July 2021, and has served as acting deputy judge president since August 2023.
Also a former magistrate from 2004 to 2013, Judge Thando Mankge, practised as an advocate in Middleburg until her appointment as a judge in 2021.
Although she has the backing of retired Mpumalanga judge president Francis Legodi, her lack of experience acting in a judicial leadership role might be a disadvantage.
Several high court divisions have record numbers of vacancies to fill, as a result of several of their senior judges either retiring or being promoted. This leaves serious gaps in judicial experience and capacity, which the JSC desperately needs to fill.
A whopping 10 candidates are shortlisted for six vacancies in the Gauteng High Court. The unusual shortlist includes labour court Judge Graham Moshoana and law professors Elmien du Plessis and Moss Phooko (who serves part-time as an electoral court judge).
Another 10 candidates are shortlisted for four vacancies in the Western Cape High Court, including senior regional magistrates Mas-udah Pangaker, Pearl Andrews and Nontuthuzelo Ralarala, and seasoned advocate and former law lecturer Johan de Waal SC.
Eight candidates are shortlisted for six vacancies at the KwaZulu-Natal High Court, including seasoned advocates Siphokazi Jikela SC, Vusi Msiwa SC, Murray Pitman and Garth Harisson, all of whom have acted as judges in KwaZulu-Natal.
Limpopo closes off the list with three candidates for a single vacancy, including senior regional magistrate Jane Ngobeni, and advocate Lesibana Ledwana, who returns to the JSC for a third try.
The JSC will meet on the first day of the interview session to set the tone for the rest of the October round. Many eyes will be on whether the JSC will uphold its own criteria and standards, and deliver suitable candidates for the largest crop of judicial appointments for our courts. The judiciary’s reputation — and the rule of law — is on the line.
Mbekezeli Benjamin is research and advocacy officer at Judges Matter.