The JSC: Guarding the Gatekeepers.

Concern

The Helen Suzman Foundation (HSF) views with concern the recent developments surrounding the Judicial Service Commission (JSC). This concern relates to the continued integrity of the judiciary, which appears to have become the object of inappropriate scrutiny. Our concern was first noted when the Executive Review of Courts was mooted. More recent developments relate to the contentious and opaque nature of the JSC selection-methodology. There is a growing perception that talented candidates for judicial appointment and advancement are being overlooked for reasons that are not entirely clear, or explicit.

Independence

In a functioning constitutional democracy, the judiciary’s independence and competence are fundamental. In his recent lecture at the HSF, the distinguished South-African/British jurist Sir Jeffrey Jowell QC observed that:

“…judges need to be independent because judges are the ultimate arbiters of disputes about constitutional values. They anchor the delivery of just outcomes in the daily lives of all individuals in accordance with the fundamental values of the new constitutional dispensation.”

The judiciary should be free from external interference, political influence or incentives. Prior to 1994, the judiciary were subordinate to Parliament. While there were a few examples of brave judicial activism that ameliorated some of the harsher effects of apartheid, old-order judges were unable to influence official policy in any meaningful way. The NP-dominated Parliament (which sat at the apex of power) could merely change the rules to ensure that such policy was ‘legal’. The apartheid system demonstrated just how devastating untrammelled political power can be. Checks on power, therefore, are fundamentally important.

The advent of democracy and the adoption of our new Constitution represent a fundamental break with the power structures of the past. Given the scars inflicted by the abuse of political power, the drafters of the Constitution wisely sought to limit the power of the governing party, irrespective of how large its majority might be. Section 2 of the Constitution declares all laws passed by Parliament subordinate to the Constitution, and renders any legislation in conflict with the provisions of the Constitution invalid.

In order for judges to exercise their constitutional role of evaluating the legality of matters that come before them, they need to be independent of both the executive and the legislative arms of government. Independence is important because it ensures that judges will not shrink from applying the law for fear that they may be forced from office or lose benefits. Judicial independence ensures that the government is held to account, and that nobody is above the Constitution.

Methodology

It is a great responsibility being “the ultimate arbiters of disputes about constitutional values.” Judges need to be up to this task. They have to be appropriately qualified, experienced, and technically able. Judges also need to be aware of the social and economic realities of the country. Only the best should be tasked with this responsibility. Establishing who ‘the best’ are and who are most appropriate candidates for appointment, is the responsibility of the JSC. Under section 174 of the Constitution, the JSC is responsible for screening, shortlisting and recommending who should be appointed to the bench at all levels. Based on these recommendations, the President makes the final decision. The JSC is, in effect, gate-keeper to the judiciary. This is a very serious responsibility.

In terms of section 174(1) of the Constitution, the JSC must select, as potential judges, candidates who are fit and proper, and appropriately qualified. And in terms of section 174 (2), the JSC is required to bear in mind that the judiciary must reflect the racial and gender composition of the country. These are the two core considerations the JSC must take into account. However, there is some controversy as to the hierarchy of these considerations, or the balance between them.

Controversy has escalated to such an extent that Adv Izak Smuts SC has resigned from the JSC, prompting a flurry of media attention, and the intervention of such prominent figures as Chief Justice Mogoeng Mogoeng and Judge President Vuka Tshabalala. Some argue that section 174(2) requires that the racial/gender transformation of the judiciary is the most important consideration, and ‘experience’ need only meet a certain threshold. A threshold that, in reality, remains unknown. Judge President Vuka Tshabalala was recently reported as saying that transformation must be considered above experience. Others have raised concern that prioritising transformation over experience will exclude many exceptionally able applicants, and damages the regard for the judiciary.

Conclusion

Last year, the JSC, for the first time, issued reasons for the exclusion of a widely regarded candidate, Adv Jeremy Gauntlett SC, in the 2010 recommendations to serve on the bench of the Western Cape High Court. These reasons shed some light on a process that otherwise appears dark and murky. Gauntlett was excluded because he lacked ‘humility’ and was perceived as being ‘acerbic’. The reasons issued by the JSC also stated that recommending two white males for appointment to the Bench in the Western Cape would ‘do violence to the Constitution.’ The first set of reasons is nonsense and raises the question that the JSC’s decision might be impeachable because irrelevant factors were allowed as grounds for exclusion. The second set of reasons, however, is a matter of much controversy, and raises the spectre of race being used as reason to exclude candidates from selection. At best this is tantamount to imposing a quota on judicial appointments, at worst it smacks of racism. Ultimately, it may be up to the Constitutional Court to decide.

Wim Louw - wim@hsf.org.za
Kameel Premhid - kameel@hsf.org.za
HSF Interns