Today the HSF releases a report, 'In the Interests of Justice: Reform of the Judicial Service Commission', proposing comprehensive reform of the JSC. It is vital that the public has confidence in the JSC, tasked as it is with a crucial role in the administration of the Judiciary, especially concerning the appointment, disciplining and removal of judges. In recent months, the JSC has offered real reason to hope for its improved performance – not least the publication of its criteria and guidelines for selection of judges.
The HSF report offers eleven proposals to secure more thorough-going reform of the JSC with the ultimate aim that it is able to fully meet its constitutional obligations. The proposals are summarised as follows:
Proposal One: Amendment to the Composition of the Judicial Service Commission
The JSC contains too many representatives of political parties and persons nominated by the President, in comparison to representatives of the Judiciary, the legal profession and academia. The HSF, therefore, proposes decreasing the number of political representatives on the JSC - this would require an amendment to the Constitution.
Proposal Two: Creation of Accountability Mechanisms for Members of the Judicial Service Commission
As a result of the past conduct of individual commissioners of the JSC, it is proposed that a code of conduct be established for the JSC. The code will guide commissioners and the Chairperson as to how to act and the limits on their actions. There is no such code of conduct at the moment.
Proposal Three: Publishing Informative Annual Reports of the Judicial Service Commission
The JSC does not meet its annual reporting standards. It is recommended that the necessary measures are adopted to compel the JSC to comply with its reporting obligations and to include sufficient information to provide the required transparency.
Proposal Four: Increase Transparency and Access to the Composition and Functioning of the Judicial Service Commission
This Report argues that there is a significant lack of transparency regarding the composition and functioning of the JSC in general. It is proposed that the JSC establish its own website where up-to-date information and documentation will be easily accessible to the public.
Proposal Five: Determine Clear and Defined Criteria and Procedures for the Appointment of Acting Judges
The lack of clarity surrounding the appointment of acting judges is cause for serious concern. It is recommended that a clear and uniform procedure be established, including the criteria for appointment, to be applied by all heads of court.
Proposal Six: Judicial Service Commission Involvement in Acting Judges
The JSC currently plays no role in the appointment of acting judges. This Report argues that the JSC should establish a committee where at its bi-annual meetings, it considers all candidates for appointment to acting judge. This would create a pre-approved list of vetted candidates from which the various heads of court could draw from when the need arises to appoint an acting judge in their division.
Proposal Seven: Prescribed Duration of Acting Appointments
In order to promote judicial independence, there must be prescribed time limits on the duration of acting appointments, including the number of permissible extensions on acting appointments.
Proposal Eight: Application of Clear and Defined Criteria for the Appointment of Judges
Clear and defined criteria are essential to the legitimacy of the appointment process. This Report commends the criteria published by the JSC but urges the JSC to strictly adhere to and apply these criteria.
Proposal Nine: Determine Clear and Defined Criteria and Procedures for the Selection of the Chief Justice
The appointment of the Chief Justice must be a process beyond reproach. A set procedure should be adopted to ensure consistency. In addition, clear and defined criteria must be included as part of the procedure and published at the beginning of the selection process.
Proposal Ten: Streamlining the Disciplinary Procedures
The current delay in the disciplinary procedures is cause for serious concern. It damages the image of the Judiciary and, as a consequence, the public’s confidence and trust therein. A streamlined process is recommended.
Proposal Eleven: Clarity on the Process of Laying Complaints Against Acting Judges
This Report proposes that the JSC and the Legislature make it clear, and amend the JSC Act, if necessary, to bring acting judges within the disciplinary procedures provided for in the Act and its regulations.
Read the full Report here
Read the HSF’s comments on the JSC Criteria and Guidelines here
Media Enquiries
Chelsea Ramsden
Senior Legal Researcher
chelsea@hsf.org.za
Nicole Fritz
Director
nicole@hsf.org.za
