No new judges’ interviews until there is JSC code of conduct, say legal NGOs

Nine legal organisations have asked the Judicial Service Commission (JSC) for an undertaking: that there will be no further interviews for judicial appointments until there is a published code of conduct for JSC commissioners and explicit criteria for the appointment of judges.

The letter refers to the February interviews of nominees for chief justice, saying they  “departed in the most fundamental of ways from generally accepted notions of fairness and justice”.

The organisations have asked for the undertaking by “no later than March 8”. The next round of JSC interviews is scheduled to begin on April 4 and includes interviews for two vacancies at the Constitutional Court.

The bodies that put their name to the letter are the Ahmed Kathrada Foundation, Corruption Watch, Council for the Advancement of the South African Constitution, Defend Our Democracy Campaign, Freedom Under Law, The Helen Suzman Foundation, Lawyers for Human Rights, The Legal Resources Centre and The Nelson Mandela Foundation.    

The February interviews caused an outcry, particularly when Gauteng judge president Dunstan Mlambo was subjected to a line of questioning about unsubstantiated “rumours” of sexual harassment, which were not put to him ahead of the interviews — as per the JSC’s long-held practice. Though the questions were eventually expunged, it was hours before this happened.

Supreme Court of Appeal president Mandisa Maya’s interview was criticised as sexist, with she being asked whether SA was “ready” for a woman chief justice and an inappropriate joke from commissioner Dali Mpofu SC about having spent the night with her — it was an all-night study session, he clarified later to laughter. Acting chief justice Raymond Zondo’s interview at a point degenerated into a shouting match between justice minister Ronald Lamola and EFF leader Julius Malema, with commissioners imploring the chair, Supreme Court of Appeal deputy president Xola Petse, to take control.

In the aftermath, the Helen Suzman Foundation told the Sunday Times it was mulling legal action.

In their letter, the legal organisations said: “Far from assisting and protecting the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness, as the JSC is constitutionally enjoined to do, these most recent interviews can only have diminished public confidence in the administration of justice.” And this was not the first time, they said. The April interviews last year were the subject of legal challenge. 

The criteria they have asked the JSC to publish would set out “what constitutes ‘appropriately qualified’ and ‘fit and proper’ so as to guide assessment of the eligibility and suitability of candidates for judicial appointment”.

The criteria would also “need to reflect engagement with the constitutional imperative that the judiciary reflect broadly the racial and gender composition of SA within the wider context of securing a transformed, diverse and representative judiciary”.

The organisations said in their letter that though their approach was “extraordinary” their request was not. “For years now, leaders of the judiciary, the organised legal profession, academics, civil society, even the JSC itself, have identified the urgent need for specified criteria for judicial appointment and stipulated conduct obligations on the part of the members of the JSC.”