AZHAR CACHALIA | Is the JSC ‘fit for purpose?’ — A reflection over 15 years

Judge Azhar Cachalia, chairperson of Freedom Under Law (FUL) and retired Supreme Court of Appeal judge, delivered a public lecture at Rhodes University on Tuesday night.

Is the Judicial Service Commission “fit for purpose?” — A reflection over 15 years.

South Africa’s democracy is anchored by its Constitution and the rule of law. Judges are the guardians of both. They derive their authority from their competence and integrity. Without either, they have none. Who and how judges are appointed is the focus of the lecture. 

The Judicial Service Commission (JSC) has two functions: It appoints judges and investigates complaints against them for misconduct. The JSC must protect the independence of the judiciary by appointing competent and ethical persons, and safeguard it from undue political interference. It follows that those appointed to the JSC to perform the functions must themselves be “fit for purpose”.         

Section 174 of the Constitution governs the appointment of judges. It requires the judiciary to “broadly” reflect the racial and gender composition of South Africa, and that those appointed to it be “fit and proper” persons.

In 1998, under the stewardship of the then chief justice, the JSC developed guidelines and criteria to assist it with the task. It required that candidates be technically competent and able to give expression to the values in the Constitution. Importantly the needs of the court to which the candidate sought appointment was also a consideration.

For just over a decade the JSC functioned without significant complaint. South Africa took its place among leading democratic countries lauded for its progressive constitution and independent judiciary.

There was, however, increasing disquiet about the functioning of the JSC. The application of section 174 and the guidelines were ignored and distorted, giving rise to arbitrary decision making. The National Development Plan of 2011 warned there was little consensus between the JSC and the legal fraternity concerning the attributes required for appointment to the bench. More alarmingly, it observed the JSC was becoming hamstrung by political and vested interests within the profession.

Sadly, instead of acting on the concerns, the JSC allowed the situation to worsen. In the time available I shall endeavour to provide some context for how this happened, point to particular instances to demonstrate the JSC’s failure to execute its mandate and conclude by drawing attention to attempts by civil society, including through litigation, to bring pressure to bear on it to perform its constitutional mandate properly.                          

The 2009 JSC hearings for four vacancies in the Constitutional Court was a defining moment, for the JSC and the ConCourt. To understand its significance one must recall the events that lead to it.

In 2005, Schabir Shaik, a Durban businessman, was convicted and sentenced on two corruption charges. Jacob Zuma, then deputy president of the country, was implicated in allegedly having received corrupt payments from Shaik. As a consequence, president Thabo Mbeki dismissed Zuma from government. In August that year, acting on search warrants issued by a judge, the Directorate of Special Prosecutions, also known as the Scorpions, searched several premises and seized documents and computer equipment relevant to a criminal investigation against him. Shortly thereafter, Zuma was charged with 18 counts of racketeering, corruption, money laundering, tax evasion and fraud. Meanwhile Shaik’s appeals to the SCA and the ConCourt failed, and he was imprisoned.

Zuma and his co-accused, Thint, a French company, challenged the validity of the search warrants. After the courts in Pretoria and Durban delivered conflicting judgments, the Supreme Court of Appeal (SCA), by a majority, found the search warrants valid. They appealed to the ConCourt.

In December 2007 Zuma was elected leader of the ANC, replacing president Mbeki. Many of Zuma’s supporters were elected to its national executive committee. The events would cause a seismic shift in the governance of the country, including the JSC. 

The appeal by Zuma and Thint to the ConCourt was heard from March 11 to 13 2008. Judgment was reserved. On March 132008, John Hlophe, then judge president of the Western Cape high court, suborned two judges of the ConCourt to rule in Zuma’s favour, adding “you are our last hope”, an exhortation to clear the path for Zuma’s assumption of power as president.      

The judges of the ConCourt reported Hlophe’s dishonourable conduct to the JSC. He denied the accusation, dismissing it as politically driven by then chief justice Pius Langa and deputy chief justice Dikgang Moseneke.

In July 2008 the ConCourt dismissed Zuma’s and Thint’s appeal on the validity of the search warrants. There was one dissent by justice Sandile Ngcobo, who would have invalidated the search warrants. The decision by the court provoked a torrent of outrage from Zuma’s supporters. The newly elected secretary-general of the ANC falsely accused the judges of conspiring against Zuma, stigmatised them as “counter-revolutionary” and added, without evidence, that their complaint against Hlophe was orchestrated to undermine Zuma. During Zuma’s tenure as president the malicious accusations against the judiciary continued and permeated the JSC.

In September 2008, the KwaZulu-Natal high court, controversially, declared the decision to prosecute Zuma invalid. The National Director of Public Prosecutions appealed and in January 2009, the SCA unanimously upheld the appeal against this judgment, allowing Zuma’s prosecution to continue.

The threat posed by a criminal prosecution obviously weighed on Zuma. Soon after being elected president in April 2009, he took aim at the JSC. The JSC hearings for the ConCourt scheduled for June 8 were postponed to September at the last minute at the request of then justice minister, Jeffrey Radebe. A JSC statement at the time cited the “vital question of transformation” as the reason for the postponement, which sounded anodyne but was ominous.  

Zuma then hastily replaced four commissioners who had served during Mbeki’s tenure, one of whom was the celebrated George Bizos, with four of his choice. The ANC also used its majority in the National Council of Provinces to replace the opposition delegate on the JSC, inviting the suggestion that the JSC was being packed with its supporters.

In July 2009, as the events unfolded, the JSC appointed an investigation committee consisting of three of its members, a judge and two senior lawyers, to conduct a preliminary inquiry into the ConCourt’s complaint against Hlophe and his counter-complaint against them.  Despite there being material disputes of fact between the parties, the committee strangely decided against cross-examination to establish the truth.

In August 2009 the JSC, which had a substantially changed membership, shockingly decided the case against Hlophe did not disclose a prima facie case of gross misconduct warranting a full inquiry, a decision, which public interest NGO FUL would challenge in the courts.

The newly formed JSC reconvened in September 2009. Initially there were 25 candidates for judicial office, but some withdrew. Twenty were interviewed. It was apparent during the interviews there were dubious political agendas at play. In an understatement Cora Hoexter and Morné Olivier observed the manner in which the interviews were conducted were “markedly inconsistent”.

“Certain candidates were asked more intrusive questions and occasionally aggressive questions on the subject of transformation, while others, including judge…Mogoeng…were asked… anodyne and unchallenging questions that failed to probe their suitability for appointment…Since then, tough questions on transformation have continued to be put sometimes in a confrontational and irascible manner.”

I had the misfortune to be one of the candidates and had a robust exchange with two of the commissioners, who were not interested in assessing my suitability for appointment. One, the ANC’s appointee and a lawyer by training, disclosed his approach to appointing judges was to promote the ANC’s National Democratic Revolution. He implied this required him to advance the interests of “blacks in general and Africans in particular”.

I insisted transformation was not a “numbers game.”

It was apparent he was either not interested or had no conception of what section 174 of the constitution or the guidelines then applicable to the appointment of judges required of him. It was an abject abuse of political power. I refused to indulge him in this charade.    

Another commissioner, inappropriately, wanted to settle a personal score he had with a retired justice of the ConCourt who had been critical of the JSC’s handling of the complaint against Hlophe. He pushed me to answer irrelevant questions about the justice, which, again, I refused to.

Another candidate, a brilliant lawyer, and one who has consistently represented disadvantaged litigants, was asked by an ANC representative why he always accepted briefs against the government, implying that in doing so he had some animus against it. The candidate was not appointed. The commissioner was promoted to justice minister. 

These were some but not all the instances of how the interviews were compromised. The post-interview deliberations lasted only 30 to40 minutes and produced a shortlist of seven candidates for the president, suggesting some choices were predetermined, which further damaged the credibility of the process.

Hlophe, who was also a candidate, was not recommended for appointment. Mired in controversy, his appointment would have been a bridge too far, even for a Zuma-friendly JSC.

One of the judges who ultimately was appointed was justice Sisi Khampepe, who served the court with distinction. Zuma would have rued appointing her. Before she retired recently, she wrote the majority judgment finding him guilty of contempt of court and sentenced him to 15 months’ imprisonment.  

After the appalling behaviour of some commissioners, I never returned to the JSC as a candidate. I was not the first, and would not be the last.

Shortly, thereafter, in October 2009, Zuma appointed justice Sandile Ncgobo as chief justice. Some suggested, perhaps unfairly, that he was rewarded for his dissent in the search warrants’ case against Zuma. Deputy chief justice Moseneke, who had been appointed to the court by Mbeki, was overlooked after a benign comment he had made at a private birthday function was seized upon by the ANC as evidence he was ill-disposed to the party.           

Meanwhile the Hlophe cloud remained. In 2011 FUL succeeded in having the courts invalidate the JSC decision to drop the investigation into Hlophe’s misconduct. Compelled to continue the investigation, a Judicial Conduct Tribunal (JCT) was scheduled for September 30 2013, but was confronted with a regrettable turn of events. 

Two ConCourt justices, Chris Jafta and Bess Nkabinde, who had first reported Hlophe’s conduct, appeared reticent to testify. They challenged the JCT’s jurisdiction to hear the matter on technical grounds. Their objection failed. They appealed to a full court and lost. Then to the SCA, which dismissed their appeal, lamenting the delay caused by this futile litigation. Undeterred, they appealed further to the ConCourt, the very court in which they were members, again unsuccessfully. When they inevitably failed, they incomprehensibly sought to rescind the judgment and were embarrassingly told in the court’s judgment they could not do so. The judgment was delivered on August 24 2016, 10 years since the original complaint. 

The JCT reconvened only two years later. This time Hlophe sought the presiding judge’s recusal on the ground he had allegedly made disparaging remarks about him at a social gathering, an allegation the judge denied. He nonetheless recused himself, delaying the matter yet again.

The matter was only able to proceed in December 2020 before a new tribunal. On this occasion Jafta and Nkabinde testified. The tribunal rendered its carefully reasoned decision on April 9 2021, finding Hlophe guilty of gross misconduct. On August 25 2021 the JSC  voted 8-4 to recommend his impeachment. The four votes in his favour by lawyers demonstrated that some members would protect him to the very end, even in the face of the damning unanswerable case against him. It took a further year for the JSC to recommended that President Cyril Ramaphosa suspend him.  

Hlophe was impeached last year and after an overwhelming and unprecedented vote by the National Assembly on February 21 2024, he was removed by the president as a judge, 16 years after the complaint against him was first made. There were few left to protect him, or so it was thought.

In this section I will draw on FUL’s research and analysis of the JSC’s functioning as the Zuma presidency strengthened its grip over the state and its institutions. FUL assessed how candidates were interviewed, the application of its guidelines and criteria, including race and gender, and importantly the adverse impact of political interference. The assessment, which covered the period until 2022, including through the Ramaphosa presidency, paints a sorry picture of the JSC’s failure to execute its mandate properly and lawfully, and emphasised the need for urgent reform. I shall point to a few instances, given the time constraints, to demonstrate this failure.   

In April 2011 the JSC interviewed seven candidates for the Western Cape high court, of which Hlophe was the judge president,  for three vacancies. Only one candidate, a black male or “coloured” according to government statistics, was appointed. The other candidates, a white female, Cloete, and five white males, including the respected Owen Rogers SC, were not. This left two vacancies. The irresistible inference was that there was an undeclared unconstitutional policy not to appoint any white candidate. The courts invalidated the hearings and directed that the JSC reconsider the applications.

The subsequent interviews, two years later, considered eight candidates for five vacancies. On this occasion the JSC filled all the vacancies, including appointing Owen Rogers and Cloete, an implied admission that they were wrongly not appointed earlier. Rogers is currently a member of the ConCourt. 

Later that year, after an aborted attempt to unconstitutionally extend chief justice Ncgobo’s term, president Zuma controversially nominated the recently appointed justice  Mogoeng Mogoeng as chief justice, again ignoring the stronger and widely supported deputy chief justice Moseneke. The subsequent “confirmation hearing” of the JSC was an unedifying spectacle, with t most of its members giving the appearance they were Mogoeng’s defence counsel rather than independent guardians of the judiciary. In response to a question from one of the more skeptical commissioners, he said he believed his appointment had been ordained by God.

In July 2012 four candidates were nominated for appointment to the ConCourt. One was justice Raymond Zondo, who was then a recently appointed high court judge. He had served in the Labour Appeal Court, with little evidence of significant constitutional experience.  Another was the exceptional judge Robert Nugent from the SCA, whose contribution to the law, including constitutional law, was formidable. Zondo was given a friendly interview in contrast to Nugent, who was interrogated on why he had withdrawn earlier as a candidate in 2009. He explained at the time he had little confidence in the JSC because of the way it had dealt with the Hlophe complaint. His answer aggravated rather than mollified them. Zuma appointed Zondo, a decision he came to regret after Zondo’s damning findings against him at the state capture inquiry.

That the JSC had become mired in political intrigue, bad decision-making and unconstitutional conduct was evident. In April 2013, Izak Smuts SC, the Bar Council’s representative, resigned from the JSC. He explained it had failed to appoint candidates “of intellectual forensic excellence steeped in the values of the Constitution”,  a statement he qualified by adding the issue was more nuanced than simply not appointing white males. The reasons he gave for his resignation accorded with the observations of many, including my own.

The JSC ignored the criticism. Worse, it doubled down immediately thereafter. Judge Clive Plasket, who had a distinguished career on the Eastern Cape bench, was overlooked for appointment to the SCA. During his interview, he was subjected to a heated exchange on transformation. In contrast other candidates had congenial interviews. He was ultimately appointed at his fifth attempt a few years later, after having endured an unspeakable humiliation to which others have also been subjected.  

The 2015 interviews for the ConCourt followed after Sudanese President Omar al-Bashir, indicted by the International Criminal Court for war crimes, was allowed to leave the country in contravention of a high court order. Justice minister Michael Masutha questioned the interviewees about judges being “dangerously wrong”. On this occasion the courts were not wrong, the government was, first to ignore a court order, and second for the minister to misuse the JSC for political purposes.

During the April 2021 interviews for the ConCourt the questioning of candidates caused public outrage at the apparent hostility shown to judge Dhaya Pillay, who had recently ruled against Zuma in the high court. Commissioner Julius Malema made baseless racially loaded allegations against her, including accusing her of pursuing a political agenda. Instead of rebuking him chief justice Mogoeng joined the inquisition.

Their behaviour prompted yet another review to declare the sitting unlawful and unconstitutional. The Council for the Advancement of South African Constitution , which launched the review, argued that the JSC was being misused for political and other ulterior purposes, including commissioners questioning judges who had made rulings against them, and attempting to settle scores against judges against whom they held grudges. Pillay was not the only candidate who had endured the travesty. Ultimately, the JSC was unable to defend itself and agreed to rerun the interviews.  Judge Pillay had had enough, and did not return.

Meanwhile, at the state capture inquiry evidence of the governing party’s political misuse of the JSC was laid bare when it emerged that its secretive deployment committee had identified judges for appointment including and specially to the ConCourt and SCA. It hardly availed its president, Ramaphosa, who testified on its behalf, to suggest its members on the JSC were not bound by the recommendations of its deployment committee. 

In April 2022, after much pressure from NGOs and others, the JSC adopted new guidelines. This too seemed to have had little disciplining effect on many of its members.

In October last year the JSC conducted interviews to fill four vacancies in the SCA after several senior judges had retired. Over the past decade the court had lost skilled judges, who the JSC failed to replace with suitable appointments. The loss was particularly acute in commercial law, a problem that has become manifest at all levels of the judiciary, including the ConCourt, one reason why commercial litigants choose arbitration rather than the courts.  

In a replay of the impugned 2011 interviews for the Western Cape high court, 10 candidates were interviewed for five vacancies. Only two were appointed, leaving three positions vacant despite there being several eminently suitable candidates. One who failed to make the cut was judge David Unterhalter, a lawyer and judge of vast experience in many areas of the law, including constitutional law and commercial law. He had earlier also been controversially overlooked for appointment to the ConCourt. The failure to appoint him and others was roundly criticised by legal commentators.   

Asked to provide reasons for its decision not to fill all the vacancies, the JSC explained that only two candidates had received 12or more votes, the threshold of votes required, there being 24 commissioners. The JSC was unable to provide convincing or any reasons why only two judges were considered suitable for appointment. This is because commissioners vote by secret ballot without providing reasons. 

FUL instituted review proceedings against the JSC, seeking relief in two parts. In part A it sought an order for the JSC to reconvene urgently to consider whether the candidates to fill the remaining candidates were qualified to fill them. That the matter was urgent was evident from the crisis in the SCA. In part B we sought an order that the JSC publish assessment criteria and require each member to assess candidates in writing against the published criteria. This is a basic method used by HR practitioners, including universities.

What the JSC did disclose in response to the review was startling. Its confidential deliberations after the public interviews revealed that the deputy president of the SCA had motivated four candidates for appointment. His strongest pitch was for Unterhalter, who he described as a “big hitter” with vast skill who took more than his share of work. He had the support of the senior members of the court. The chief justice supported appointing two candidates, including Unterhalter. He said he was unsure about the others. The chief justice was followed by minister Ronald Lamola, who also supported Unterhalter, even though he thought “he (had) tried to be too clever” during his interview. He also supported two other candidates. This was followed by commissioner Narend Singh, an MP who supported three of the candidates recommended by the deputy president, but not Unterhalter.

Singh’s view of him was that “He is a great jurist [but he] did not have the impression…that he was a team player”, an astonishing remark in the light of the contrary view of the SCA judges. Commissioner Dodovo then followed. He preferred another candidate and would not recommend Unterhalter because he believed he was “arrogant” and had a “sense of entitlement and self-importance.” He preferred appointing judge Anna Kgoele, who he described as “a black African woman”, instead of Unterhalter.

Commissioner Malema, an EFF MP, came next. He had nothing to say about any candidate other than Unterhalter. What he did say amounted to crude racial stereotyping and revealed the depths of the discourse to which the JSC had sunk: “A well experienced judge who has been before us many times… who has a sense of entitlement and superiority…[which was apparent from how he addressed the commission]. I like the racism of the Afrikaners because they don’t hide it… I will never support subtle racism that masquerades itself as being intelligent … I don’t agree with the minister that he was trying to be clever. He was being himself. A person who looks down at very senior judges because they are of a different colour … We have dealt with such characters before who felt they could go to the Constitutional Court … He comes across as arrogant…and intellectually superior. [T]he racism of liberals … That’s what I wanted to say about him.”

One or two other commissioners echoed the unsubstantiated claim of arrogance against Unterhalter, with one observing he is a “good judge” but adding the disqualifier “one cannot take away the appearance of arrogance”.

An attempt by commissioners S Baloyi and Tembeka Ngcukaitobi, both respected silks and recent appointments to the JSC, to introduce some rationality into the process failed to gain sufficient traction.  They emphasised the importance of giving due to weight to the recommendations of the head of the court, that humility and arrogance are not disqualifying criteria and do not outweigh other factors that redound to a candidate’s credit. 

Ngcukaitobi was severe in his criticism of his fellow commissioners, who, he said, were treating the looming crises in the SCA lightly. He argued that Unterhalter was the only candidate singled out for criticism, except for one other. He insisted it is untrue that he is not a team player, a rebuke directed at commissioner Singh. His own experience appearing before him, he explained, was that he was pleasant. In regard to the allegations of entitlement, arrogance and racism, he pointed out, correctly, that no one had put any of this to the candidate during his interview. He said Unterhalter was not without flaws, one being that he had not read “the mood of the room”, but added that he was “head and shoulders” above the other candidates. He emphasised Unterhalter was the only judge among those interviewed who had a clear theory of how to reconcile the common law with the Constitution.

Only 12 of the 23 commissioners expressed their views. 

The chief justice then called for the vote. Only two candidates obtained 12 or more votes. They were appointed. Unterhalter received 11 votes and was not, as were none of the others. Two posts were thus left vacant despite there being suitable candidates to fill them and despite clear judicial authority since the 2011 debacle in the Western Cape high court that a failure to appoint suitable candidates for vacancies without good reason was unlawful.                                              

The JSC realised it would not be able to defend its failure to fill the vacant positions. Also clear was that the apparent, though not clearly articulated, reasons for not appointing Unterhalter, in particular, were unlawful. That he was allegedly arrogant was not a disqualifying factor, even if true. The allegation of racism was baseless, highly prejudicial and constituted unfair discrimination prohibited by the Constitution.

The record revealed several commissioners used irrelevant considerations laced with personal invective and overlooked relevant considerations in voting the way they did. Regrettably the chief justice, as chair, gave no guidance on the matters before calling for a vote.  He thus abdicated his constitutional duty to ensure a fair process and a satisfactory outcome.

The JSC was therefore constrained to agree, under pressure of the FUL review, to readvertise the vacancies before the scheduled hearing in October this year.  It did so in May and filled the three vacancies advertised. Two were filled by Unterhalter and judge John Smith, who were both deemed not suitable in the previous hearing.

However, the issues that gave rise to the relief sought in part A of the FUL review, specially the failure to apply the guidelines adopted for appointments clearly and consistently, and which form the basis of the part B review,  for the JSC to adopt clear assessment criteria, remain.

The first aspect is the duty to provide reasons, a requirement that lies at the heart of the exercise of public power. The JSC is unable to distill proper reasons for its decisions because it votes in secret after its deliberations. This means we have no idea why commissioners vote the way they do and is unfair and prejudicial to unsuccessful candidates.

I have described the irregular and unlawful manner of the JSC’s functioning for more than a decade. The critical problem, initially, was the absence of a clear set of guidelines which informed all candidates and commissioners what was expected of them. When the guidelines were adopted they were routinely ignored by the JSC. This much is apparent from the JSC’s failure to defend its processes when faced with judicial scrutiny. The need for assessment criteria so commissioners are obliged to disclose their reasoned assessment of each candidate is imperative. Without this the JSC is unable to assess candidates fairly. The public interest demands a fair process. FUL awaits a court date to confront these issues. 

The Zondo Commission’s investigations revealed how key role players enabled state capture to take hold in state entities which parliament, then dominated by a single party, ignored. President Ramaphosa undertook to act on its recommendations.

When the seventh parliament was elected there was an expectation it would act to fix the institutions that required fixing. It was hoped parliament would designate suitable persons to serve on the JSC, hardly a difficult task. It failed dismally by appointing two members who clearly were not suitable, Malema and Hlophe.

Malema has consistently abused his authority on the JSC. He has also been found guilty of breaching the members of  parliament code of conduct. He had inappropriately questioned a judge being interviewed by the JSC in 2021 about a ruling the judge made against him (Malema) in a defamation action, a matter in which he had a personal interest. In that matter the judge had held Malema defamed Trevor Manuel by causing falsehoods about him to be published.   

Turning to Hlophe again, once the ConCourt had invalidated Zuma’s quest to lead his newly formed MK Party in parliament due to his criminal conviction for contempt of court, the party dubiously anointed the disgraced Hlophe to be its parliamentary leader, and then cynically nominated him to be one of parliament’s representatives on the JSC. FUL and several other NGOs wrote to the speaker to register their indignation. They cautioned that Hlophe’s appointment would subvert parliament’s duty to guard the independence of the judiciary and be legally assailable. The speaker responded that there was no legal requirement for persons appointed to the JSC to be “fit and proper”, nor any other legal impediment to his appointment. With respect, she was ill-advised.   

The National Assembly thus proceeded to select Hlophe to serve on the JSC, the very body that found him guilty of gross misconduct and unfit to be a judge. As a member of the JSC, he will have to decide whether candidates for judicial office meet the high ethical standards to be appointed as judges, standards he felt no need to adhere to as a judge. This is akin to asking the fox to guard the henhouse. 

We have a duty to object to this cynical exercise of public power and FUL has approached the courts to invalidate his appointment on at least three grounds:

• The National Assembly was incorrect that it was bound to accept the MK Party’s nomination of Hlophe. It has a discretion to appoint members who are “suitable” to serve on the JSC which it failed to exercise.
• Section 165(4) of the Constitution obliges parliament to take steps to protect the independence of the judiciary and the public’s confidence in it. Appointing Hlophe to the JSC is completely at odds with that obligation.
• Appointing Hlophe was irrational and unreasonable. A decision is irrational if it undermines the purpose for which it was taken. The core purpose of the JSC is to foster public confidence in the JSC and, in turn, the individuals who are selected to be judges. The very reason Hlophe was removed as a judge was because the JSC and the National Assembly found his continued involvement in the judiciary would threaten the public’s confidence in it. Appointing Hlophe to the JSC means he is again involved in the judiciary – in the key role of interviewing and deciding on the appointment of new judges – and that this involvement, too, threatens the public’s confidence in the judiciary.

We seek an urgent court hearing to reverse this untenable development. The DA and several other NGOs will also asking the court to

In my years on the bench and thereafter as a member of FUL and now chair of its board, I and many others have sought to arrest the decline of the JSC by raising our voices. That it has increasingly abused its power and became captured by political interests has been laid bare. It was not only the politicians on the JSC who were responsible for this. Some judges have acquiesced in this development. Senior lawyers with vested interests have not only watched, but also been complicit. Some the storied justice Edwin Cameron recently described as “dangerous”.

He trenchantly commented: “They seek to propel [an] agenda. They are skilled liars, dissemblers, manipulators and propagandists. [They] employ the instruments of legal practice to bedevil, confuse and dismay…They have even used the JSC to wreck the advancement of conscientious and capable candidates for judicial preferment.”

The consequence of the combined conduct of these malevolent actors, often aided and abetted by the insipid among them, has been a loss of public confidence in the JSC, an institution vital to ensure the competence of the judiciary and protect its independence from political and other interests. Without this the rule of law is imperilled.

I ask Rhodes University and the graduates from its iconic Law Faculty to be vigilant, to speak out, and not to look the other way.

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