The appointment of new Chief Justice Mandisa Maya – the first woman to head the Constitutional Court – has rightly been heralded as a shattering of the judicial glass ceiling.

It is an indication of the great strides that have been made in ensuring that the bench broadly reflects the racial and gender composition of the country.

We should, however, be cautious of allowing this positive development to gloss over a looming crisis in our judiciary. Indeed, while the judiciary in democratic South Africa has maintained its independence, there are warning signs of trouble brewing now and into the future in terms of the quality of judicial appointments. 

Unpleasant treatment of nominees

Our new official opposition in Parliament has designated disgraced former judge John Hlophe MP to the Judicial Service Commission (JSC) – the body tasked with selecting and disciplining judges. That Hlophe was impeached for attempting to influence other judges to rule in favour of former president Jacob Zuma tells you everything you need to know about his commitment to judicial impartiality. 

The unpredictable, inconsistent and often unpleasant treatment of nominees during JSC proceedings has deterred many excellent judicial candidates from putting themselves forward for consideration. 

The JSC interview process has often been fraught with inconsistencies that seriously call into question the credibility of proceedings: between 2011 and 2023, there have been at least five instances in which the courts have invalidated decisions of the JSC. 

That the JSC has so frequently been taken to court and forced to concede its errors under compulsion of the law is a demonstrable failure of judicial leadership. After all, the JSC is chaired by the Chief Justice. 

The composition of the JSC heavily favours political representation. It comprises three or four members of the judiciary, five members representing the legal profession and academia, 12 politicians (from the executive and Parliament) and four members designated by the president (after consultation with political parties).

The politicians on the JSC have often engaged in grandstanding, driven narrow partisan agendas, and failed to discharge their constitutional obligations.

Retired Supreme Court of Appeal Judge Azhar Cachalia described personally choosing not to return for further interviews after being subjected to "the appalling behaviour of some commissioners" at the JSC as far back as 2009. Retired Justice of the Constitutional Court Edwin Cameron has recently echoed these sentiments.

In the April 2021 JSC interviews a number of judges, including Judge Dhaya Pillay, were targeted with personal attacks. Although the threat of court action forced the JSC to re-run the interviews, Pillay chose not to return.

Only three nominations

The upshot is that in 2024 there is a vacancy on the Constitutional Court that has been open since 2021. The JSC has been forced to readvertise vacancies in 2012, 2016, 2022, and, in the latest call for nominations issued in May 2024 (after interviews in April which did not result in sufficient candidates to recommend to the president), only three nominations were received for the interviews scheduled to take place in October.

CDE has a number of recommendations to improve the selection of judges to ensure a strong and impartial bench.

Our first recommendation concerns the role and seriousness of the bodies that choose members of the JSC. This is not just any old committee - the JSC selects the judiciary, the third branch of government.

Members of the National Assembly, NCOP and Presidency must appoint JSC commissioners who will best serve the national interest, not political or sectional interests. Each of these bodies should be held accountable for the suitability of the choices they make, as should the professional legal bodies who also nominate JSC members.

As retired Supreme Court of Appeal Judge Robert Nugent said in a CDE webinar this week: “Appointing a strong judiciary is, in fact, very simple: make sure that the people appointing them, are the right people to appoint them.”

JSC members must evaluate candidates for judicial appointment on objective grounds. We now have criteria for selection of judges, but these must be applied, fairly and consistently so as to truly assess a candidates legal track record, respect by their peers, work efficiency and judgement.

The role of the Chief Justice is critical. As chair of the JSC, Chief Justice Maya has a vital role in how judges are interviewed, the quality of JSC discussions on the relative merits of each candidate and how judges are disciplined. Chief Justice Maya must take an active role as chair of the JSC and, in so doing, make a significant and tangible contribution to safeguarding our constitutional order.

It is also important that measures are taken to increase the influence of judges in the evaluation of candidates. As Geoff Budlender SC put it in CDE’s online seminar: "Members of the JSC who come from Parliament, for the most part, often don’t have the practical knowledge and the experience of how the courts work, what is required of judges and how judges do their job." 

JSC composition should be amended 

Consideration should therefore be given to altering the composition of the JSC. This will require a constitutional amendment that restores the balance to the position that prevailed under the interim Constitution, in which four members of Parliament were sent to the JSC, rather than the current ten (six from the National Assembly and four from the NCOP).

Lastly, more resourcing is required - both for the JSC, which needs research support, and for the judiciary itself. Like many public institutions, the courts are struggling: court buildings are not properly maintained, access to proper IT and legal databases is degraded, support staff often lack critical skills or are poorly managed, and systems of court administration work imperfectly.

We stand at an important crossroads in our nation's democratic history. While the GNU consists (mainly) of constitutionalists from across the spectrum, the official opposition have explicitly stated their intention to tear up the Constitution.  

South Africa's judiciary – as impartial defenders of the Constitution and the rule of law – has never been more important, nor more vulnerable.

Ann Bernstein is executive director of CDE. This article draws on a new CDE report, "How to appoint a strong judiciary", which is the fourth report in CDE’s Agenda 2024 series.

Article first appeared on News24.