Take Two: Appointing the Justices of the Constitutional Court

Introduction

How does the saying go, “[i]f at first you don't succeed try, try and try again”? The Judicial Service Commission (“JSC”) held a mammoth round of interviews in April this year to fill vacant judicial positions. The JSC is currently engaged in another weeklong round of interviews. Front and centre were the interviews to fill two of four positions in the Constitutional Court.

As one of the three essential pillars of any democracy, upholding the independence, credibility and integrity of the Judiciary cannot be overstated. The Judiciary is tasked with upholding the Constitution and the Rule of Law. It does this through the decisions and judgments of the appointed judicial officers. It is therefore of little surprise that the appointment of judges is so vitally important.

This brief explores the JSC interviews held in April 2021 before moving on to consider the October 2021 interviews. It will conclude by discussing the criteria for appointment as a Constitutional Court justice.

Take One: April 2021 Interviews

The previous interview rounds were mired in scandal, riddled with politicking, squabbling and even bullying. That time considerations were ignored raised doubts as to their procedural integrity.

After a legal intervention brought by the Council for the Advancement of the South African Constitution, the JSC admitted that they had not applied their minds correctly, if at all, to the question of which candidates to recommend. This became apparent from the transcript of the deliberations, which was eventually produced.

The result is that those interviews would need to be conducted afresh. Previously, eight candidates were interviewed over a period of two days namely, Adv Dodson SC and Judges Kathree-Setiloane, Kollapen, Mathopo, Molemela, Pillay, Unterhalter and Vally. The current list of shortlisted candidates was the same, with the exception of Judge Pillay whose candidacy was withdrawn.

The Constitutional Court has eleven justices. That we should have arrived at this parlous state where there are five vacancies on the Court is an indictment of the leadership of the Court over the last few years, as is the fact that the interviews have to be repeated.

Acting justices do have an important role to play in the Court. But for there to be effectively five vacancies is unacceptable. The JSC has made it clear that they consider doing an acting stint in the Court as a sort of informal requirement for permanent appointment. Aside from this, it is a good rehearsal to see if the person has what it takes. But acting positions come with a serious drawback. They lack the security of tenure of permanent appointees, which may greatly impact on independence and accountability. This applies equally to all acting justices, judges and magistrates in the various courts in South Africa. Not to mention the procedure used in choosing and appointing acting justices.

Take Two: October 2021 Interviews

The October interviews took place on 4 October 2021. One can certainly comment that the commissioners, under the chairmanship of Acting Chief Justice Zondo, appear to be on better behaviour. Subsequently, the JSC, after holding a short closed deliberation, recommended the same five candidates for appointment, which they had recommended after the April interviews, namely Judges Kathree-Setiloane, Kollapen, Mathopo, Molemela, and Vally.

Three points need to be raised. Firstly, there may very well be nothing wrong with coming to this conclusion. The judges are of a good calibre. Secondly, the question inevitably arises that how could the same conclusions be arrived at through a flawed process as opposed to an appropriate process. The third issue that arises is as what one commentator has called the “racialised elephant” in the room.[i] This isn’t an idle speculation, and as Eusebius McKaiser comments, would it not be better for the JSC to indicate that it does not wish to consider white candidates. This may sound outrageous, but given the developments which led to the HSF’s involvement in the appointment of magistrates in the Lawrence case, where in the deliberations of the Magistrates Commission this exclusion was exactly the approach that was followed.[ii] It was found to be unlawful by the High Court and the matter is now before the Supreme Court of Appeal. At this point the issue of representativity as hoped for by Section 174(2) of the Constitution seems to be a forlorn hope.

Appointing Constitutional Court Justices

Section 174 of the Constitution holds that there are two criteria for appointment as a judicial officer. First, the candidate must be appropriately qualified, and that he or she must be a fit and proper person. In addition, this section considers “[t]he need for the judiciary to broadly reflect the racial and gender composition of South Africa”. That is it.

The limited criteria published in 2010 by the JSC are of little assistance and provide no further clarity.[iii] The criteria are framed in an abstract manner so as to leave it open to a variety of interpretations. This leads to a situation where candidates, commissioners and the public are unable to determine the content of the criteria with any degree of certainty. Without certainty how will each candidate know what is expected of them, whether they meet such criteria and how they will be judged? In short, certainty will add to a greater degree of transparency, accountability and overall credibility to the appointment process.[iv]

The uncertainty was apparent during the April interviews and deliberations. It was unclear whether experience in an acting capacity is a requirement, whether a person has to have experience as a judge, and if so, for how long? What other experience is considered important or even critical? With no common ground of understanding between the commissioners themselves, as well as the commissioners and the candidates, it is hard to evaluate a candidate’s suitability.

The uncertainty around criteria was again present in the October interviews. Commissioner Mpofu, during Adv Dodson SC’s interview, recognised that the criteria may not be clear enough. Questions of how much weight are to attach to different experiences, whether acting or other experiences, took a focal point of many of the candidates’ interviews. This was especially evident in the interview of Judge Unterhalter where his judicial role in the World Trade Organisation’s Appellate Body in Geneva was challenged on whether it constituted experience as a judicial officer. In conclusion, the JSC will really have to get its act together if it wants to hang on to its disappearing credibility.

Chelsea Ramsden
Senior Legal Researcher
chelsea@hsf.org.za

[i]Eusebius McKaiser, “The JSC Should Tell Us Whether White Men Should Stop Applying” Sunday Times Daily (6 October 2021) available at https://www.timeslive.co.za/sunday-times-daily/news/2021-10-06-the-jsc-should-tell-us-whether-white-men-should-stop-applying/.