EDITORIAL | The JSC's reluctance to appoint judges undermines public confidence

The selection process of judges by the Judicial Service Commission (JSC) has long been controversial, perhaps most notably when cheap political point-scoring dominated questioning of candidates for the position of chief justice in February 2022.

Since then the JSC has rightly clamped down, introducing guidelines for the conduct of interviews and insisting that questions are directly related to the courtroom competence of candidates. This includes previous judgments, legal knowledge and judicial philosophy.

But its latest decision, on Tuesday, to appoint only two candidates to the Supreme Court of Appeal, where there are four vacancies, has once again caused consternation.

The decision was made late on Tuesday night after four hours of deliberations, which followed two gruelling days of interviews for the key positions. The 10 candidates in the hot seat were Gauteng high court judges Fayeeza Kathree-Setiloane, David Unterhalter and Thina Siwendu, as well as Mpumalanga high court judge Shane Kgoele, Free State judge Johannes Daffue and Eastern Cape judges John Smith and Nozuko Mjali. Also in contention was Northern Cape deputy judge president Mmathebe Phatshoane, deputy judge president in the Mthatha high court Zamani Nhlangulela and KwaZulu-Natal high court judge Busisiwe Masipa.

In the end, only Kathree-Setiloane and Kgoele got the nod, despite several other candidates appearing to fare well in the interviews, notably Unterhalter and Siwendu. Their exclusion was unexpected and contentious. Unterhalter is regarded by many in the legal fraternity as one of South Africa’s foremost legal minds, while Siwendu also had a good interview.

While it is correct that interrogation of candidates for these vital posts must be rigorous and tough, it is unfortunate that the JSC offered no explanation as to why it decided not to fill the two remaining vacancies, especially given the calibre of those in contention. An understanding of the JSC’s thought process may have helped the legal fraternity to better accept its resolution.

Although the JSC does not give reasons for its decisions, when conclusions are reached that bear so little relation to what is expected after interviews, it undermines public confidence in the process.

It is also a mystery that, despite a long-standing vacancy at the Constitutional Court, the JSC did not interview for the apex court.

At face value, it does not seem that the decision bodes well for the functioning of the SCA, the country’s second highest court that shoulders the bulk of appeals from the lower courts. The workload at the SCA is known to be gruelling and its judgments give guidance to the courts below.

The SCA is in desperate need of skills and experience. Over the past five years, it has lost 201 years of appellate court experience, according to Judges Matter’s Mbekezeli Benjamin.

So why reject some of the country’s top high court judges?

It is also a mystery that, despite a long-standing vacancy at the Constitutional Court, the JSC did not interview for the apex court.

Both Unterhalter and Kathree-Setiloane have been interviewed three times since April 2021 for the Constitutional Court. In the last round of interviews, Kathree-Setiloane was one of the four names recommended to President Cyril Ramaphosa for appointment but lost to Owen Rogers. Yet despite this, she and Unterhalter decided to rather apply for the SCA.

Instead, chief justice Raymond Zondo announced on Tuesday that for the first time in decades, senior lawyers and legal academics will be considered for appointment directly to the ConCourt.

While the constitution allows for non-judges on the ConCourt, the general preference has been for judges, because they have experience on the bench. But the JSC has struggled to find enough suitable candidates.

A seat on the ConCourt has been vacant since October 2021. In October 2022 and April 2023 the JSC was unable to interview for the post because it could not get a shortlist of enough candidates.

The constitution requires that the JSC recommend to the president three more candidates than the number of posts available — so if there is one post, the JSC must recommend at least four candidates from which the president may make his choice. 

In this round of interviews, the JSC did not advertise the post. Zondo said this was because he feared the same thing would happen as in April.

So what, if any, impact will academics and lawyers on the ConCourt have on the justice system?

And, possibly more importantly, why is it that South Africa’s top legal minds are sidestepping an opportunity to serve in the top court in the country? A position on the ConCourt should be seen by most in the legal fraternity as the pinnacle of a legal career — an opportunity to shape our courts, to ensure accountability and ensure South Africa’s precious constitution is enshrined in the rights of all people in our country.

Something has gone wrong. Depending on who you ask, there will be differing views, opinions and assumptions as to why this is. But until the problem is accurately identified and addressed, the judiciary — and justice for us all — is on the backfoot.