Getting the Judicial Service Commission back on course

Speaking in the context of the progress women have made in the SA judiciary, with her customary clarity and quiet understatement, retired Constitutional Court Justice Kate O'Regan has highlighted a cause of the malaise that is affecting the workings of the Judicial Service Commission.

Participating in a Centre for Conflict Resolution sponsored public discussion on a documentary celebrating the progress of women in the SA judiciary between 1994 and 2007 called "Courting Justice", she drew attention to the fact that some members of the JSC have little experience of the judicial or legal process and so often will be less able to assess the legal expertise of a candidate.

It seems that only the lawyers on the JSC focus on the "expertise" of the candidates for appointment. This is suggestive of a lack of accountability in the open process that has replaced the pre-liberation "tap on the shoulder" by the executive that led to appointment of the all pale male judiciary of old.

The issue under discussion was the decision of the JSC to maintain two vacancies on the Cape Bench despite the application, among others, of a female candidate - a practising attorney - who had passed the aspirant female judges training course at the top of her class.

Justice O'Regan, who shared the platform with her retired Constitutional Court colleagues, Albie Sachs and Yvonne Magoro, was careful to refrain from commenting directly on the decision itself, wisely so, as it is likely to be the subject matter of litigation concerning the rationality of the decision to keep vacancies open when able and suitable candidates, who apparently do not fit the racial profile desired by most JSC members, are available for appointment.

This litigation will also be directed at the actual composition of the group that made the decision in question - a procedural issue which was probably determined on the last occasion the JSC lost when taken to court, by Premier Zille.

She was, so the Supreme Court of Appeal confirmed, illegally left out of discussions about the future of embattled Cape Judge President John Hlophe. It will be necessary to distinguish away the decision in that case, as in both cases a member of the JSC was not present when a decision was taken by its members.

How has it come about that a lack of focus on expertise should so blight the deliberations of the JSC that it finds itself facing litigation yet again? The answer to this question lies in its composition.

While Justice O'Regan was right to point out that the current system of interviewing candidates for the Bench under the public gaze is a welcome advance on the executive "tap on the shoulder" of old, there are flaws in the composition of the JSC that lead to the perpetration of errors and injustices that ought not to occur in a constitutional democracy under the rule of law in which accountability and responsiveness to the needs of ordinary people are foundational values of the system.

The problem, stated more bluntly than was possibly implied by Justice O'Regan, is that there are too many politicians on the JSC and not enough lawyers. Some of the lawyers on the JSC are also there as politicians, this serves to further bedevil the deliberations that are supposed to be aimed at finding appropriately qualified lawyers who are fit and proper persons to grace the Bench and legitimately dispense justice in a manner that inspires the confidence of the public.

This is the core business of the JSC. It is true that factors of race and gender must be considered, but this is done in the context of the basic function - finding the expertise required to keep the SA judiciary in the high esteem it enjoys worldwide and to run the courts efficiently and effectively.

Jacob Zuma has reaffirmed that the ANC remains committed to its policy of deploying its cadres in "all centres of power". The JSC is indubitably a "centre of power" and there is no shortage of deployed cadres in its ranks.

Zuma himself cleared out the Mbeki era presidential nominees and appointed his own choices in their place shortly after he took up the presidency. The party political appointees of the ANC are by definition its cadres and the net effect of all this is the existence of a "caucus" headed by the Minister of Justice, who is ex officio a member of the JSC.

It is this caucus which was able to swing the recent voting on new appointments to the Cape Bench into the irrational direction that the Cape Bar (which is not known for taking controversial but principled stances on difficult issues in recent years) alleges is at the heart of the decision to keep open vacancies on a Bench on which women are grossly under-represented and the "expertise" of which Justice O'Regan speaks is in ever dwindling supply.

While the Cape Bar is to be congratulated for its decision to take on the recent excesses of the JSC in a court challenge, both as to the merits of the decision to keep open vacancies and as regards the procedure adopted, this course of action addresses the symptoms of dysfunction in the JSC and not their causes.

There is a need to reconsider the composition of the JSC. The new SA has developed a reservoir of talent in the form of retired judges. Their wisdom, experience and intimate knowledge of the "expertise" of aspirant judges needs to be harnessed if the JSC is going to be able to do its job properly. It is counter productive to allow political considerations to overshadow the work of the JSC.

But this is inevitable while the caucus of cadres is effectively in control of the decision making processes of the JSC. It would be preferable by far if there were fewer politicians and more experts on the JSC itself.

The qualifications of the members to do the important work the Constitution demands of them needs to be examined by the Law Reform Commission and the legal professions, as well as by the public, whose interests the whole process is supposed to serve. It is simply a matter of introducing judicial expertise as a criterion for appointment to the JSC.

The appointment of judges is not a popularity contest and ought not to be the product of an essentially illegal system of cadre deployment in the ranks of the JSC. The task at hand is too important to leave it to political appointees of any stripe. Far rather allow civil society, faith based institutions and trade unions to nominate a suitably knowledgeable person to expertly represent their respective interests in the vital process of appointing judges.

The appointment of retired judges, a valuable but under-used resource, to serve on the JSC should also be considered in any reform process, as their presence is likely to enhance the standard of the important deliberations with which the JSC (not the ANC) is seized, both when it appoints new judges and when it disciplines sitting judges.

The open process, while infinitely preferable to the opacity of the past, needs to be rendered more accountable in a manner that does not suggest the creation of a judicial oligarchy but is also not a politically dominated affair. It is a difficult balance to achieve because the perfect system for appointing independent and impartial judges has yet to be invented.

Paul Hoffman SC is Director of the Institute for Accountability in Southern Africa

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