The Judicial Services Commission (JSC) has been hard at work interviewing nominees to fill the 54 vacancies across courts in South Africa, with these ending on Wednesday afternoon.
The JSC is a constitutional body responsible for ensuring the fairness, transparency, and integrity of the judicial appointment process. It interviews, vets, and recommends candidates for judicial positions, such as appointments to the Constitutional Court, to the President, who makes the final decision.
JSC members include Chief Justice Mandisa Maya (who is also the chairperson), the (embattled) Minister of Justice Thembi Simelane, judges, legal practitioners, members of the National Assembly and National Council of Provinces, a professor of law, and four individuals appointed by the president.
They also handle complaints and disciplinary proceedings against judges, investigating any allegations of misconduct or incompetence.
Speaking of incompetence, the interviews nearly didn’t happen, thanks to controversial uMkhonto we Sizwe Party (MKP) MP (aren’t they all?), former Western Cape Judge President John Hlophe. The disgraced former judge was appointed to the JSC, which found him guilty of gross misconduct earlier this year. His appointment didn’t go down well with some parties, particularly with the Democratic Alliance (DA), which filed with the Western Cape High Court to try to bar Hlophe’s participation in the JSC. The court granted the DA’s interim interdict, barring Hlophe from participating in the current interviews. The MKP then tried to have the interviews postponed but was denied.
MKP continues to maintain that Hlophe’s absence from the interviews renders the commission “improperly constituted,” but a legal expert has rubbished this claim. Hlophe has since withdrawn from the JSC.
The interviews, which finished on Wednesday afternoon, were the result of a call by the JSC for nominations to fill vacancies in several courts, including the Constitutional Court, Supreme Court of Appeal, Land Court, Labour Court, and Labour Appeal Court, as well as various divisions of the High Court. More updates followed on 15 May and 11 June 2024, announcing a Deputy Judge President vacancy in the Mpumalanga Division of the High Court and an additional Judge vacancy in the Gauteng Division of the High Court.
Filling these vacancies, particularly in Gauteng, has become urgent as a shortage of judges is severely hampering the delivery of justice to the public. Allison Tilley, coordinator at Judges Matters, says that civil trial dates are now being pushed all the way to 2029, and if your trial runs longer than five days, you won’t get a hearing before 2025. “We pride ourselves on our independent judiciary, but we must look the truth in the eye – how independent for how long under these conditions?” asks Tilley.
Let’s take a look at the JSC’s recommendations:
There was one vacancy in the Constitutional Court. However, the JSC received only three nominations. According to Section 174(4) of the Constitution, the JSC must prepare a list of nominees with three more names than the number of appointments to be made. As a result, they couldn’t proceed with shortlisting candidates for this position.
In the case of the Supreme Court of Appeal, which had three vacancies, the JSC nominated Judges Elizabeth Baartman, Phillip Coppin, and Petrus Arnolus Koen to join the court.
After careful deliberations over the candidates, Judge Susannah Jane Cowen has been nominated as the Deputy Judge President of the Land Court.
Judge Mogomotsi Edwin Molahlehi has been successfully nominated for the position of Judge President of the Labour Court and Labour Appeal Court.
Unfortunately, after the deliberations, no candidates were recommended for the one available vacancy at the Eastern Cape Division of the High Court in Mthatha.
There were six vacancies in the Gauteng Division of the High Court. The JSC has nominated the following candidates:
- Prof. Wilhelmina Elmien Jacoba du Plessis
- Adv. Etienne Christoffel Labuschagne SC
- Adv. Shaida Aboo Baker Mahomed
- Mr. Mudunwazi Samuel Makamu
- Judge Graham Nasious Moshoana
- Adv. Richard Bonakele Mkhabela SC
Judge Zaba Philip Nkosi has been nominated as the Deputy Judge President of the KwaZulu-Natal Division of the High Court.
For the six vacancies in the KwaZulu-Natal Division of the High Court, the successful candidates are:
- Adv. Mluleki Martin Chithi
- Adv. Garth Michael Harrison
- Adv. Siphokazi Jikela SC
- Adv. Rithy Singh
In the Limpopo Division of the High Court, Thohoyandou, Ms Jane Tsakane Ngobeni has been nominated to fill the one available vacancy.
Judge Takalani Vincent Ratshibvumo has been nominated as the Deputy Judge President of the Mpumalanga Division of the High Court.
Judge Nolwazi Penelope Mabindla-Boqwana has been nominated for Judge President of the Western Cape Division of the High Court, formerly held by Hlophe.
Lastly, for the four vacancies in the Western Cape Division of the High Court, the JSC has nominated:
- Adv. Melanie Holderness
- Ms. Mas-udah Pangarker
- Ms. Nontuthuzelo Elizabeth Ralarala
It is now up to President Cyril Ramaphosa to appoint the recommended candidates.Despite a rough start, these interviews show that the JSC works despite claims of a ‘captured’ judiciary by those implicated in wrongdoing (ahem, Jacob Zuma). But it isn’t without fault. The Centre for Development and Enterprise (CDE), one of Mzansi’s leading think tanks, has offered solutions on how what they called a “captured JSC” should be reformed. Their recommendations include, among other things, reducing the outsize representation of politicians. “The politicians on the commission have all too often engaged in grandstanding, driven narrow partisan agendas and failed to discharge their constitutional obligations.” Given the drama with MKP and Hlophe, we agree wholeheartedly.