Statement on the JSC’s interviews for Chief Justice
9 February 2022
Protest at the degraded process that was the Judicial Service Commission’s (JSC) recent interviews for the Chief Justice position has been unscrupulously represented as opposition to the possible appointment of Justice Mandisa Maya as Chief Justice.
This is not true. It bears repeating that all four candidates are jurists of distinction and we at the Helen Suzman Foundation (HSF) recognise that the path to this point for Justice Maya in particular – as a woman in a notoriously sexist profession – must have been harder still than for her male counterparts.
But none of the candidates were served by a corrupted process. And those in whose service the JSC’s powers are required to be exercised – the South African public – were spectacularly let down.
Far from being able to observe a process intended to probe the fitness and suitability of the four judges for position at the helm of the judiciary, the public was instead subjected to a spectacle that was both irrational and unfair. For example:
In contravention of its own practice, and basic principles of justice, the JSC failed to notify JP Mlambo ahead of time not only of a damning but a potentially defamatory line of questioning it intended pursuing. This line of questioning related to an entirely unsubstantiated rumour of sexual misconduct and was sustained for what would have been near half of the time originally allocated for JP Mlambo’s interview.
Explicit political agendas were pursued. It is worth noting that towards the end of the interview of Acting Chief Justice Zondo, he became, it seemed, entirely superfluous to the interview — it being used instead by Julius Malema to wage a political fight with the Minister of Justice about his involvement in the appointment of acting justices to the Constitutional Court.
The differential treatment given to the candidates in their questioning raises issues of impartiality and objectivity on the part of the Commission. Granted each candidate has an individual life and judicial experience but why, for instance, one candidate was asked as to their role in the liberation struggle while others were not, or why Justice Maya should attract so many questions relating to gender, in an approach that seemed unquestionably patronising at times, made for a situation where it was next to impossible to adequately or meaningfully compare the candidates.
It has been noted by many that the JSC’s recent interview process is an unprecedented one. The Constitution affords the President the power to appoint the Chief Justice of this country, having consulted with the JSC and leaders of parties in the National Assembly. The President’s establishment of this recent elaborate process was presumably in order to enhance the exercise of his powers to appoint the next Chief Justice. But far from enhancing the exercise of his powers, regard for last week’s interviews and the conduct demonstrated there can only detract from the authority of his decision.
Moreover, whoever is appointed Chief Justice as a result of a process of which these interviews form part will be handed a poisoned chalice. The debasement of the interview process, the abuse of the JSC’s powers and role, the shameful conduct of certain JSC commissioners means that whoever assumes the post of Chief Justice would begin her or his tenure denied the full confidence of the public.
Issued by Nicole Fritz, Director at the Helen Suzman Foundation, 9 February 2022
