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The function of the Judicial Service Commission is to select fit and proper persons for appointment as judges and to investigate complaints about judicial officers. It also advises government on any matters relating to the judiciary or to the administration of justice. The commission has been in the news recently owing to Parliament’s nomination of impeached former judge John Hlophe to serve on this important body. This is the same Parliament which, in March 2024, voted Hlophe out of his position as Western Cape judge president by a “huge majority“, on charges of gross misconduct – and which sees no problem in nominating the same person to a committee that assesses the fitness of aspirant judges to hold office.
The aim of the coalition Judges Matter is to promote accountability within the judiciary and bring transparency to the judicial appointments process. In the article republished below, the coalition’s Mbekezeli Benjamin argues that the JSC must take a broader, and earlier, approach to gathering information when it comes to appointments. In essence, it must be in possession of enough information to make the correct decision on who to appoint, based on the needs of the courts and the competencies of the candidate.
The article is an excerpt from the coalition’s submission to the JSC in April 2024, ahead of the latter’s sitting for interviews in that month.
By Mbekezeli Benjamin, research and advocacy officer at Judges Matter
First published on Judges Matter
As the body responsible for the appointment function, the Judicial Service Commission (‘JSC’ or the ‘Commission) plays a crucial role in determining the shape, size, and competence of South Africa’s judiciary.
In this regard, the JSC needs to be strategic in the judicial appointments it recommends at each round of interviews. Put simply, the JSC needs to take its ‘human resources’ function seriously. Judges Matter made a similar call in our submissions ahead of the JSC interview sessions in 2023 and 2024. We reiterate this call.
We understand the JSC’s practice to be that, at the start of the deliberations stage at each interview session, the head of that specific court provides commissioners with their view of how the candidates fared. They then comment on which candidates are suitable for appointment based on the needs of that specific court. However, we believe that this is far too little and far too late.
In our view, commissioners must be armed with information much earlier – at the ‘Sifting Stage’ of the judicial appointments. That means the Sifting Committee must approach the shortlisting with the needs of the court firmly at the front of its mind. The Committee must first review the candidates’ legal technical skills and experience and then assess the individual candidate’s suitability based on the needs of the court at that particular time. They should then assess this against the other candidates in that pool.
The Committee must try its utmost to match the needs of the court with the skills of the candidates. Other considerations may include demographics, age, and expected tenure on the bench. Later, when the process moves to the ‘Interview Stage’, the Commission must also question the candidates’ qualities and test them against the judicial appointment criteria, the needs of the court, the needs of the broader judiciary, and South African society in general, in line with section 174(2) of the Constitution.
In fulfilling this strategic HR role, both the Sifting Committee and the full Commission must receive comprehensive reports on the needs of specific courts and the judiciary in general. These reports must detail the caseloads and nature of cases the specific court deals with, the skills needed to handle these cases, and the skills currently available at the specific court. For example, while virtually all high court divisions deal with Road Accident Fund and rape cases, the Mpumalanga High Court may deal with more wildlife crimes, while the Durban High Court may deal with more shipping cases, simply because of their unique geographical locations. The JSC must also receive reports on reserved judgments and case backlogs.
The JSC must constantly keep in mind considerations like the pipeline of skilled judges to appoint to leadership positions, to specialist courts, and to appellate courts like the Competition Appeal Court, the Supreme Court of Appeal and the Constitutional Court.”
The ages of all the judges stationed at a specific court at a particular time is also a metric that the JSC must monitor closely. Older, more senior judges are generally more productive and can boost a court’s productivity. However, older judges are also vulnerable to illness, and too many of them retiring at once can completely wipe out a court’s productivity and institutional memory, leaving junior judges without the guidance and mentorship necessary for optimal function. For example, in the five years between 2018 and 2023, the SCA has ‘lost’, through retirement and promotions, over 200 collective years of appellate judicial experience. While this might not always be detrimental, the associated risks must be mitigated through well-considered appointments.
The JSC must constantly keep in mind considerations like the pipeline of skilled judges to appoint to leadership positions, to specialist courts, and to appellate courts like the Competition Appeal Court, the Supreme Court of Appeal, and the Constitutional Court.
The JSC must also consider the pipeline of women judges available to maintain the levels of representation required by section 174(2) of the Constitution. Even at the ‘Sifting Stage’, the JSC must be acutely aware of these tensions and try to balance them in each successive round of interviews.
Where will the JSC source this information? This information must primarily come from the heads of courts. However, they may also retrieve it from the Office of the Chief Justice’s Statistics Unit and Judicial Support Unit. External bodies like the Department of Justice (which monitors the rationalisation of the courts), the SA Police Service (for crime trends), and Statistics South Africa (for demographic and economic trends) may also be consulted.
Ultimately, the JSC must have at its disposal a full grasp of all the information before it arrives at a decision to select one candidate over another. It must also be able to competently predict the pool(s) from which it would appoint all of these judges in future. The JSC must seriously grapple with its ‘HR’ function.
