The big story: Judging our judges

What’s going on with the Judicial Service Commission (JSC)? 🤔

The body – made up of 23 commissioners (lawyers, politicians, judges, and a single academic) – is charged with interviewing potential judges for all our courts; it then hands its recommendations to the president, who makes the final choice. One of its current pressing tasks is to help our all-important Constitutional Court fill the vacancies on its 11-member bench. Experts have pointed out that relying on acting justices imperils the apex court’s work. 

The JSC ran interviews in April to fill two of the five total upcoming vacancies – and the process was disastrous. Some politicians used it to settle political scores, and outgoing Chief Justice Mogoeng Mogoeng, as the JSC chair, was criticised for failing to protect judges. The JSC was forced to rerun the interviews this week, thanks to successful legal action by a civil society group, the Council for the Advancement of the SA Constitution. 

This time, the interviews were much smoother under deputy Chief Justice Raymond Zondo (who is among those shortlisted to take over from Mogoeng – see our next story for more on this). 👇🏽

But it wasn’t without criticism. Here are the main issues:

1. The five recommendations were no different from the first round of interviews. While they’re all excellent candidates, political commentator Khaya Sithole told News24 he felt it sent a political statement that the JSC saw nothing wrong with its first process. 

2. After having her reputation seriously impugned the first time around, Judge Dhaya Pillay withdrew from the interviews. She was badgered by EFF leader Julius Malema in the first interview about her friendship with Minister of Public Enterprises Pravin Gordhan as part of his party’s ongoing beef with Gordhan. This is sad: the more qualified women of colour candidates, the better. The issue should have been handled better. 

3. Judge David Unterhalter and advocate Alan Dodson were questioned by Malema and Advocate Dali Mpofu, who represents the Advocates Bar, about their fitness for the court as white men. We’re all for transformation but the questions were bizarre given that the Constitution clearly states the “judiciary must broadly reflect the demographics of South Africa in terms of race” and there are no white men currently on the bench. It’s also petty considering the outstanding role that retired justices like Edwin Cameron and others, who happen to be white men, have played in progressing our democracy with landmark judgments, particularly in favour of the black majority.  

The JSC has a valuable role to play in ensuring our courts are staffed by credible, competent, ethical judges. Maybe it’s time to reconsider its composition: might fewer politicians and more legal experts be the right way to ensure decisions are taken with democracy’s best interests at heart?

This article appeared as part of The Wrap, 7 October 2021. Sign up to receive our weekly updates.