From April 1 we will have a new head of the judiciary, head of its apex court, head of the office of the chief justice, and chair of the Judicial Service Commission (JSC). Then there’s the other small matter still weighing on judge Raymond Zondo’s shoulders — completion of the report of the state capture commission.
There’s no question that the soon-to-be chief justice must be one of the busiest people in the land, carrying some of the republic’s most weighty responsibilities. Among his first tasks will be to chair the JSC interviews scheduled for April 4-8. The interviews are intended to fill 18 judicial vacancies, including two at the Constitutional Court.
With Zondo holding the reins, the chances of a repeat of the indefensible process that played out in February when candidates were interviewed for the chief justice post will be much reduced. Zondo was in the chair in October 2021 when the JSC reran its April interviews, which were so compromised they inspired a legal challenge from the Council for the Advancement of the SA Constitution.
The process by which the October interviews were conducted seemed far more credible than in April, even if they yielded the same outcome. Now Zondo, fresh from his own ordeal as an interviewee before the JSC, may have added incentive to ensure the process is conducted with the integrity and fairness equal to its objective: selecting those who will serve as judges.
It also seems likely that for the next interviews the JSC will be without participants such as commissioner Dali Mpofu, who has appeared integral to some of the most obvious abuses of the JSC’s process. Yet the JSC has not acquiesced to a request from several civil society organisations that it put in place a code of conduct for commissioners and more elaborate set of criteria by which to appraise judicial candidates before the April meeting. Instead it has indicated that there is a “reasonable possibility” that it may use the day set aside before the April interviews start to review its mandate and other related issues.
Diversity concern
Many will be heartened by this. Certain criticism of the JSC may also be more muted after these interviews in that those believing white male judges are given an especially hard time when seeking elevation to the Constitutional Court are likely to have the fears somewhat allayed. Of the six candidates for the two Constitutional Court vacancies, three are white men. The JSC must recommend a list to the president with three names more than the number of appointments to be made — in this case five. Accordingly, the JSC will be able to exclude only one of the candidates from that list.
But for those concerned about diversity in its fullest sense — and not diversity as a thing apart from excellence but as its own form of excellence — we should be clear that this is not enough. The conduct and performance of the JSC can’t depend largely on who occupies the chair, appreciating the importance of that role. Its performance and compliance with fundamental norms of fair and proper process must be irrespective of who occupies the chair.
More profoundly, it cannot be that judicial candidates who have demonstrated clear independence in their judicial function, who have not shied away from controversial matters for fear of earning political enmity, should face real disincentive to applying for judicial promotion — uncertain about whether they will face public ambush before the JSC to settle political scores. That is especially so when those judicial candidates — if female and if black — will not have the same vocal constituencies, as with white men, insisting that in them being passed over, excellence has been forfeited.
To put it crudely, a JSC process that results in the appointment to the Constitutional Court of judges thought to be politically tolerable, among them one or two white men — still held out ostensibly as the traditional embodiment of excellence — but which actively discourages the applications of those such as judges Dunstan Mlambo and Dhaya Pillay, is a process that is constitutionally abhorrent.
• Fritz, a public interest lawyer, is director of the Helen Suzman Foundation.
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