The newly formed SA parliament is expected to vote on MPs who will be deployed to the Judicial Service Commission (JSC) on Tuesday after the motion was previously withdrawn last week.
The MK party caused an uproar when it nominated impeached former Western Cape judge president John Hlophe to sit on the JSC. Six civil rights organisations — including Freedom Under Law, the Council for the Advancement of the SA Constitution and Judges Matter — wrote to National Assembly speaker Thoko Didiza saying it would be “irrational” for someone like Hlophe, who the JSC effectively impeached, to serve on the same body.
But what is the JSC and why is it important? Is it living up to its mandate? And where can it improve with the new parliament coming in, especially with Hlophe?
What is the JSC?
The JSC interviews and recommends candidates for judicial appointment. It also deals with complaints about judges. A JSC finding of gross misconduct, such as with Hlophe, is ground for impeachment, which is voted on by the National Assembly.
The JSC is made up of 23 representatives. Some are from the legal community, including the chief justice, heads of court and members of the profession. It also includes the minister of justice and MPs. This wide inclusion “enhances the democratic legitimacy of the judiciary”, Jenna Maujean from judicial watchdog Judges Matter explains.
After open hearings, candidates for vacant judicial openings are recommended to the president for final confirmation.
This is what creates SA’s judiciary, one of the three branches of the government, making the JSC essential to SA’s administration of justice.
Is the JSC effective?
Maujean thinks the JSC “is the most effective way” to pick judges in SA. However, Freedom Under Law’s Chris Oxtoby thinks otherwise. “There are some significant practical issues which hamper the commission,” Oxtoby tells Business Day, listing its “large size, occasional meetings and struggles with timekeeping [during public hearings].” Overall, the JSC’s processes can look “inefficient”.
Though the JSC provides schedules for public hearings, the JSC has rarely stuck to them. “This often leads to candidates [having] to wait hours, sometimes late into the night,” Oxtoby says, “and they and commissioners are tired and unfocused. Hardly the ideal way to assess suitability for permanent judicial appointment.”
Maujean thinks other countries could benefit from SA’s processes, including its transparency in interviews, using criteria that will be considered in JSC deliberations and the inclusion of all branches of government on the commission.
How can the JSC improve?
In a 2022 report, Freedom Under Law noted the JSC’s “disciplinary procedures have proved opaque and unwieldy”. For example, it took almost 20 years for Hlophe’s case to be finalised. It is also often unclear where matters stand.
There is also no code of conduct for commissioners during hearings. This deficiency, for Maujean, means “it is difficult to recall commissioners that are not meeting the high ethical standard that should be expected of them”.
However, both Oxtoby and Maujean think the JSC’s most recent performance, during the April interviews, is grounds for optimism. Since 2023 the JSC has received wide praise from court watchers for a steady improvement under the leadership of outgoing chief justice Raymond Zondo.
For example, there are now listed criteria for judicial appointment that commissioners must consider. Importantly, candidates themselves now know what the JSC expects. The development of criteria for evaluating candidates “is a hugely important and commendable step”, Oxtoby says.
Maujean says that since 2023, the JSC has “shown a massive improvement in terms of the quality of the questions and the respect towards candidates”. Before, politicians would often use the JSC hearings to settle scores with judges who had handed down less than favourable judgments.
The next JSC hearings in October will be headed by the new presumptive chief justice, Mandisa Maya, who will replace Zondo when he retires in August.
The October interviews will be very important as the JSC seeks to fill vacancies at the Constitutional Court and the Supreme Court of Appeal and for the head of the labour courts. However, it is Tuesday’s vote involving Hlophe that will be keenly watched.
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