By Zelna Jansen
The Judicial Service Commission’s (JSC) interviews for the position of Chief Justice (CJ) has been described as a “circus” which has undermined respect for the integrity of the judiciary. Further, recommending only one candidate can be seen as unconstitutional, as it is usurping the powers of the president.
Section 174(3) of the Constitution gives the president the power to appoint the CJ after consulting the JSC. The usual practice is that the president refers one name to the National Assembly and the JSC.
However, after following a process of public participation, the president referred four names to the National Assembly (NA) and JSC. This could be seen as an indication that the president will consider the views of the political parties and the JSC. Legally, there is no prescribed form the consultation should take.
There is also no time constraint within which the president must appoint a new CJ. The president also does not have to accept the recommendation from the JSC.
Politics, on the other hand, can be described as issues relating to the governing of the country, and where there is a debate between political parties. This was clear from the type of questions posed to justices and disputes and arguments between commissioners and the minister of justice.
It is unfortunate that justices of such calibre were exposed to such delinquency. The fact that a high court decision has, on occasion, ordered that the JSC rerun its interviews because of the unlawfulness of the questions, did not deter the interview process from spiralling into a toxic mess.
Some have even called for the removal of politicians from the process of appointing judges. Particularly, as potential “fit and proper” candidates will be discouraged and reluctant to enter the fray. As much as one may be tempted to agree with the statement, not having political representatives on the JSC would mean that there will be no voice from the people of South Africa in the process of appointing judges.
In terms of section 178 of the Constitution, when the JSC convenes for the purpose of interviewing judges, its commissioners consist of: a Chief Justice; President of the Supreme Court of Appeal; Judge President; a Cabinet member responsible for Justice; two practising advocates; two practising attorneys; a teacher of law; six persons from the National Assembly, of which three must be opposition; four permanent delegates from the National Council of Provinces (NCOP); and four persons designated by the president as head of the Assembly.
There is nothing wrong with the composition of the JSC. The judiciary is one of the three arms of the state and, as democracy would have it, the two other arms of government must be part of the process of appointing judges. Just as the CJ is part of the appointment of members of Parliament in the National Assembly.
However, if the removal of political representatives is mooted, how will judges be appointed then? Should it only be the legal profession that makes this decision? Prior to 1994, judges were appointed by the minister of justice.
History tells us that these appointments were often political. Which meant that judges appointed agreed with the laws and policy decisions of the government. Judges were appointed from the ranks of the bar, and were also all white.
Removing politicians from the process is also not that simple. The Constitution will need to be amended. That means politicians will have to agree to a bill removing them from the process, and then the president, who is also a politician, will have to sign the bill into law. Politics is here to stay.
It was therefore to Justice Mandisa Maya’s advantage to not have been a judge of the Constitutional Court. In my view, she was by far the best candidate for the position. This is so as the judiciary itself has tensions. Particularly, between the Supreme Court of Appeal and the Constitutional Court.
The SCA was the highest court until 1994, when the Constitutional Court became the highest court. It has been noted that tensions at the SCA have improved under Justice Maya’s leadership. It is hoped that her appointment will bring co-operation between all the courts.
As the Judge President of the SCA, she would also have been involved in the administration of the judiciary, an important credential given that the CJ heads up the Office of the Chief Justice, which sees to the administration and develops norms and standards for the judiciary.
One thing is clear though: judges who follow their convictions and make court orders that do not sit well with politicians are going to have to face the music at the JSC. Especially, if they aspire to ascend the ranks of the judiciary.
These judges should be applauded and encouraged to follow their convictions and to not be discouraged from entering the “circus”. Rather, apply and prepare as best. Remember, even acrobats spend long, gruelling hours in preparation for their performances in the circus.
*Zelna Jansen is a lawyer. She is CEO of the Zelna Jansen Consultancy.
** The views expressed here are not necessarily those of IOL or of title sites.