Judicial officers are recommended and appointed in terms of section 174(1) and 174(2) of the Constitution. Section 174(1) states that”any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer.” Section 174(2) recognizes “the need for the judiciary to reflect broadly the racial and gender composition of South Africa” for it is clearly desirable that South Africans should be able to identify with the judiciary and that the judiciary should reflect the gender, racial and cultural diversity of our people.

Section 174(2) is however clear on this point: The judiciary must reflect the racial and gender composition of South Africa broadly.

Candidates must also be able to act with complete independence and without “fear, favour or prejudice” in accordance with section 165(2) of the Constitution.

Section 174 (2) must be read with section 174(1) of the Constitution and upon a proper interpretation of these sections, the excessive consideration of transformation of the judiciary by the JSC is a cause for concern as it results in the JSC considering transformation an overriding factor – more than often at the cost of exceptional and more than suitably qualified judge-candidates.

Is the current structure and composition of the JSC – and the way it recommends candidates for judicial office – truly serving not only South Africa, but an independent judiciary’s best interests?

The composition of the JSC is set out in section 178 of the Constitution. It consists of:

The JSC comprises 23 members ordinarily and 25 when provincial premiers and judges president sit in on matters relating to a specific High Court Division.

In essence there are nine lawyers’ or legal practitioners on the JSC (Chief Justice, President of the SCA, Judge President, two advocates, two attorneys and one teacher of law). The rest (15 in total) are politicians who may or may not have any legal experience. Currently, as many as 12 ANC-linked appointees (out of 23) sit on the JSC.

Who appoints Judges and judicial officers in jurisdictions different to South Africa?

In Australia, Justices of the High Court and Australian Federal Courts are appointed by the Australian Cabinet and on advice from the Australian Attorney General. This in essence constitutes executive government-appointment, without intervention by the existing judiciary.

In the United States of America (US), Supreme Court Justices, Judges of the Circuit Courts of Appeals, as well as District Court Judges (as referred to in the US Constitution) are all appointed by the President of the US (after consulting the US Department of Justice and his own White House staff) and on further advice and consent of the US Senate. The American Bar Association (ABA) is intricately involved in the process as it interviews judges and lawyers in the candidate’s community about the candidate’s qualifications, including temperament, and also interviews the candidate. At the end of this process, the ABA advises the Department of Justice on whether the candidate is well qualified, qualified, or not qualified. The Federal Bureau of Investigation (FBI) also investigates candidates and when all three of these bodies’ (FBI, the ABA and the Department of Justice) evaluation of the candidate is favourable, the US Attorney General formally recommends the nomination to the President.

In India, Judges of Supreme Court were previously appointed by the President of India (acting on advice of the Union Cabinet). Subsequent to a number of rulings known as the Three Judges Cases in 1982, 1993, 1998, the President must appoint judges chosen by the Indian Supreme Court’s collegium – a closed group comprising the Chief Justice of India and the four most senior associate judges of the court. The Indian Cabinet and Parliament have almost no role to play in the appointment of judges to the Indian Supreme Court or any of India’s 24 High Courts. The Supreme Court collegium appoints judges to its own bench, the benches of the High Courts and also appoints Chief Justices to the various High Courts.

The National Development Plan has called for the JSC to be restructured so that it is free from political interests. However, the Minister of Justice, Jeff Radebe, has consistently rejected calls for the changing composition of the JSC and for presidential appointment powers to be curtailed.

A body like the JSC and the procedures it follows in recommending judicial candidates ought to be beyond repute. In light of the current situation, perhaps the membership structure of the JSC ought to be reviewed and challenged – although this would entail a constitutional amendment.

The argument is often made that the courts should reflect the broader evolution of society and that for this reason it is appropriate for politicians to play a role in the appointment of judges. The idea is that in countries with strong two-party systems like the United States a balance will be maintained between liberal and conservative arising from frequent changes of government. However, in societies like South Africa with dominant party governments and permanent minorities, justice might be better served by ensuring a greater role to judges and the legal profession in the appointment of judicial officers. Membership to the JSC ought accordingly to be limited to no more than 15 members of whom at least nine or 10 should be judges and practising lawyers. Recommendations from the bar and side-bar would then play a more decisive role. The Commission must also, in a consistent and transparent manner, account (to Parliament for example) as to its procedures and decision-making process relating to its recommendation of candidates for judicial appointment. Provision might also be made to include an appeal or higher review mechanism by an aggrieved candidate who was not appointed. The role of politicians in this process should be curtailed as much as possible.

However it is composed, the JSC’s primary task is to recommend the appointment of appropriately qualified men and women who are fit and proper persons as judicial officers. This means, above all, that they must accept that the courts are independent and subject only to the Constitution in terms of section 165(2). It also means that they must be able to apply the law impartially and without fear, favour or prejudice. The present effective control of the JSC by representatives of a single political party clearly undermines this objective. The Judiciary must act as the sentinel of our Constitution and democracy. Political interference – particularly in the manner in which the JSC interprets sections 174(1) and 174(2) – threatens to chip away at the foundations of our constitutional democracy.

Adv Jacques du Preez, FW de Klerk Foundation

Graeme Williams, MediaClubSouthAfrica.com