JSC should be strengthened to better defend rule of law

29 November 2022

Freedem Under Law (FUL) today released a new report, titled A Review of the Activities of the South African Judicial Service Commission 2009 to 2022, which reviews the performance of the Judicial Service Commission for the period.

Over the last 12 years, the JSC has attracted much attention and criticism regarding its conduct vis-à-vis both its appointment and its disciplinary obligations. FUL has closely monitored the JSC and has on many occasions reacted to lapses on the part of the JSC and its commissioners, and to ineptitude in the performance of its constitutional mandate. FUL has been, and continues to be, involved in litigation against the JSC, particularly in respect of its failures to execute its disciplinary function.

The report highlights key deficiencies in the composition and operation of the JSC and makes remedial recommendations and proposals to address both the structural problems inherent in the JSC, as well as the challenges in its current processes.

For years now the JSC has been prone to political interference in respect of appointments of judges and the report argues that the JSC should be reconstituted to include more senior judges and fewer party-political appointees.  

It calls for a strengthening of the structural integrity of the Commission and recommends the appointment of a sufficiently resourced full-time secretariat, or at least to capacitate a section of the staff in the Office of the Chief Justice.

The report also proposes steps to address some of the criticisms levelled against the JSC’s appointment process, notably, the adoption of clearer guidelines for the appointment, promotion and transfer of judicial officers. Such guidelines will ensure that the JSC is more readily held to account for its decisions because there is an objective yardstick against which they may be assessed. 

In respect of the JSC’s performance in dealing with complaints against judges, the report describes the current system as ‘broken’.  The report suggests that a fundamental reassessment of the relevant provisions of the JSC Act is needed. This should include the development of timelines for dealing with complaints, more rigorous reporting requirements for the JSC, and making the suspension of judges, pending finalisation of complaints relating to potentially impeachable conduct, the default position. 

Judith February, Executive Officer of FUL, says:  “These changes are critical to ensure a more functional and accountable JSC, and a judiciary which fulfils its constitutional mandate to uphold the rule of law.  The JSC serves an important gatekeeping function in respect of the judiciary, by interviewing candidates for vacancies on the bench and making appointment recommendations, and dealing with complaints brought against judges. The JSC’s role in creating and maintaining a competent, impartial, independent and accountable judiciary cannot be overemphasised.” 

The report was researched and written by Calli Solik, assisted by Justin Winchester, Sanan Mirzoyev and reviewed by Chris Oxtoby, under the guidance of Professor Emeritus Hugh Corder, and on behalf of Freedom Under Law.

Issued by Freedom Under Law, 29 November 2022