Press Release: The HSF Proposes Changes To The Judicial Service Commission

The Helen Suzman Foundation Submitted Its Comments To The Joint Constitutional Review Committee On The Annual Review Of The Constitution

On 30 June 2021, the Helen Suzman Foundation (“HSF”) submitted its comments to Parliament on the annual review of the Constitution.

The importance of upholding the independence, credibility and integrity of the Judiciary cannot be overstated. Section 165 of the Constitution vests judicial authority in the courts and provides for the independence of the courts. The Judiciary, and the courts, are the guardians of the Constitution and must uphold the rule of law.

The HSF has proposed amendments to sections of the Constitution concerning the administration of justice in order to enhance the independence of the Judiciary. This relates in particular to section 174 in relation to the appointment of judges and section 178 pertaining to the Judicial Service Commission (“JSC”). Both the appointment of judges and the composition of the body that appoints them is of great constitutional importance as it impacts directly on the independence and integrity of the Judiciary.

Section 174 – Appointment of Judicial Officers

Currently, the Constitution provides that any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer and that the Judiciary needs to reflect broadly the racial and gender composition of the country.  The HSF has submitted that these criteria are inadequate. The broadness with which these criteria are framed leads to a lack of focus in the appointment process, as was clearly evidenced in the most recent interviews of applicants by the JSC.  Clearer and more extensive criteria will also lend a greater degree of credibility to the appointment procedure.

Therefore the HSF submits that Section 174 of the Constitution should provide that the JSC must publish additional criteria to be considered when appointing a judicial officer.  This is not considered to be a major change to the Constitution but will enhance the reliability of the appointment process.

Section 178 – Judicial Service Commission

The HSF believes the current composition of the JSC is too politically sided. The dominance of the JSC by political representatives holds the danger of perceptions of political influence and loss of independence and integrity. Currently, the Constitution requires that the JSC consists of:

  • the Chief Justice, the President of the Supreme Court of Appeal and one Judge President;
  • the Minister of Justice;
  • two practising advocates and two practising attorneys, nominated from within their respective professions;
  • one teacher of law, designated by teachers of law at universities;
  • six persons designated by the National Assembly from amongst its members, three of whom must be from opposition parties;
  • four persons designated by the National Council of Provinces, with a supporting vote of at least six provinces; and
  • four persons designated by the President.

This means that only 8 of the members of the JSC, out of a total of 23, represent the Judiciary, the legal profession and law teachers, with the balance from Parliament, the Cabinet and appointments by the President.

The HSF has therefore proposed the following amendments to section 178, which will lessen the risks associated with excessive political control of the selection process relating to judges:

  • Section 178(1)(h): Three persons identified by the National Assembly from among its members who are not also members of the executive. Each of the three largest parties in the National Assembly is to designate a member;
  • Section 178(1)(i): Three permanent delegates to the National Council of Provinces. Each of the three largest parties in the National Council of Provinces is to designate a member; and
  • Section 178(1)(j): Two persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly.

To see the HSF’s full submission to Parliament, click here.

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