Our take: Reform the JSC

The long-awaited interviews for our top judge last week should have been a proud moment. It’s a fairly democratic process and President Cyril Ramaphosa welcomed public input for the first time. He also presented four candidates to be interviewed instead of just one. 💁🏽‍♀️

But instead of celebrating the nomination of the excellent Mandisa Maya as South Africa’s first woman Chief Justice, experts have condemned how the interviews descended into chaos. There were sexist overtones to certain questions, and unsubstantiated questions about alleged sexual assault directed at one candidate, Gauteng Judge President Dunstan Mlambo. During Acting Chief Justice Raymond Zondo’s interview, questions turned into a shouting match between former ANC Youth League mates turned political enemies, EFF leader Julius Malema and Minister of Justice Ronald Lamola, on a largely unrelated issue.  Advocate Dali Mpofu, who sits on the JSC, also came under fire for his questions. 

As we’ve previously told you, our country’s Judicial Service Commission (JSC) has previously landed in hot water for political point-scoring in shambolic interviews, which it was then forced to rerun. Many blame the body’s troubles on the over-representation of politicians on the 23-member body. 

Organisations like Freedom Under Law, the Helen Suzman Foundation and other scholars say Ramaphosa should ignore the JSC’s recommendation as stemming from an unfair and possibly irregular process. Others, like legal academic Nomboniso Gasa, called for Justice Maya to decline the recommendation on the principle of fairness of proceedings. 

Ramaphosa now faces a prickly decision – and the clock is ticking: in typical Cyril fashion he was slow to act before all this drama and the position has been vacant for over 120 days. 😪

Any expectation that Justice Maya gives up a recommendation that she, along with the other four highly qualified candidates, deserves, is unfair to her. But this moment reminds us that there is a need for real reform of the JSC. Legal research group Judges Matter argue that removing politicians may not be useful, given that legal professionals on the JSC also entertained the highly discriminatory questions aimed at Dustan Mlambo for more than two hours. 

Instead, they suggest, clearer criteria are needed to direct commissioners’ questions. We have to agree. 

This article appeared as part of The Wrap, 11 February 2022. Sign up to receive our weekly updates.