/ 10 March 2022

JSC says ‘no’ to clarifying criteria for judicial appointment

Dunstan Mlambo
Gauteng Judge President Dunstan Mlambo

The Judicial Service Commission (JSC) has dismissed a demand by nine legal organisations that it should postpone all further interviews with aspiring judges until it has elaborated on its criteria for appointment to the bench.

“You are advised that the JSC has not passed any resolution to give you the undertaking you asked it to give,” it wrote in a reply sent to the organisations on Wednesday afternoon.

The JSC’s letter noted that the correspondence sent to it by the Helen Suzman Foundation, Freedom Under Law, the Council for the Advancement of the South African Constitution and others, was considered by deputy chief justice Raymond Zondo, the current chair of the commission, and all other members.

It went on to say that the JSC had decided in October last year to set aside a day or two in the beginning of this year for commissioners to meet “and discuss its entire mandate”.

It was envisaged that this would take place before the round of interviews with candidates for appointment to the Constitutional Court in April, it added. Zondo then considered possible dates and suggested these to the commissioners.

However, not enough members were available on the proposed dates.

There was still the possibility though that the JSC could use the meeting it normally holds on the day before an interview session commences to discuss its mandate and other related interviews, the commission said. In the meanwhile, it referred the organisations to criteria agreed in 2010.

Part of the difficulty for the JSC may be that it undertook, in February, to further elaborate on its criteria but only once a new chief justice would be appointed, because the new head of the judiciary will also be the new chairperson of the JSC.

The undertaking was expressed after it had concluded four days of often fraught interviews with the four shortlisted candidates for the position. More than a month later, President Cyril Ramaphosa is yet to name a new chief justice, though it is reliably understood that he has now completed the requisite consultation with parties represented in parliament.

The letter to the JSC was informed in part by fresh controversy over the conduct of members of the JSC sparked by those interviews.

It began: “You will know that the recent Judicial Service Commission (JSC) interviews of candidates for the position of Chief Justice left the public at large and especially those of us concerned for the administration of justice disturbed.

“Those proceedings departed in the most fundamental of ways from generally accepted notions of fairness and justice.”

The low point of the interview process was the grilling of Gauteng Judge President Dunstan Mlambo about rumours of sexual harrassment, described by many as an ambush because in departure from accepted legal practice it was done without any substantiation or warning.

Mlambo dismissed it as gossip, aired to sink his chances of becoming chief justice, and the exchange was later expunged from the record.

But the letter is also overtly aimed at the upcoming April round of interviews with candidates to fill vacancies at the constitutional court, a year after a set of interviews with candidates for the apex court was taken on legal review by CASAC because the process descended into crude politicking.

Economic Freedom Fighters leader Julius Malema is preparing a legal challenge in the high court to a parliamentary directive that he apologise for attempting to corner judge Elias Matojane over his ruling ordering the party to pay defamation damages to former finance minister Trevor Manuel.

“It is against this backdrop and in view of the urgent need to restore public confidence in the processes by which judicial appointments are made, that we take this unprecedented step of approaching the JSC and asking that no further interviews for judicial appointment to any court be considered until the following are published: a) a code of conduct for commissioners and the chair of JSC interview processes; and b) explicit criteria as to what constitutes ‘appropriately qualified’ and ‘fit and proper’ so as to guide assessment of the eligibility and suitability of candidates for judicial appointment.”

The candidates interviewed in April 2021 included senior counsel Alan Dodson and David Unterhalter. Both faced questions as to why they should be appointed, rather than suitably qualified black candidates. Both were overlooked then and again in October when the interviews were repeated following a settlement agreement between the JSC and CASAC, raising some controversy because of their stature in the legal community.

Both are again on the list of candidates who will be interviewed this April.

The letter nods to this, stating that the criteria “need to reflect engagement with the constitutional imperative that the judiciary reflect broadly the racial and gender composition of South Africa within the wider context of securing a transformed, diverse and representative judiciary”.

The issue of racial composition was raised by commissioners in the fraught interviews with the candidates for chief justice.

Zondo took the view was obliged to consider the racial composition of the constitutional court — and the fact that there were currently no white judges on that bench. 

“When this body considers the interviews with candidates for the concourt in April, this body will have an opportunity to decide whether it places before the president for his decision some white candidates to enable him to appoint one or both or fill one or both vacancies with white judges,” said Zondo.

“But that is a constitutional imperative that this body is enjoined to consider each time it considers these matters and I have no doubt it will consider it and make its judgment call.”

The constitutional court has not had a white judge in its ranks since Justice Johan Froneman retired in 2020. Justices Edwin Cameron and Johann van der Westhuizen retired in 2019 and 2016 respectively.

The JSC has recommended that Ramaphosa appoint Supreme Court of Appeal president Mandisa Maya as the next chief justice. However many, including the president, have said that the commission exceeded its mandate by firmly recommending who he should appoint, rather than reporting more broadly on the relative suitability of all four candidates.