WE add more than a dollop of controversy to judicial appointments in SA, and the body that interviews and recommends candidates has more than once been scolded by the courts.
But we’re not the only ones with problems. This week I read a fascinating judgment from the constitutional court of the Seychelles that dealt with a disputed judicial appointment and concluded by making an extraordinary order setting aside a judge’s official appointment.
A good point to begin the story is with the constitutional court’s explanation of how the appointment system works: the Constitutional Appointment Authority (CAA) is an independent, impartial body functioning “without interference from any of the branches of government” – from neither the executive nor the legislature nor the judiciary. Having completed the selection process, the CAA proposes names of the selected candidates to the president who, exercising a constitutional prerogative, officially makes the appointments.
This dispute was brought by Viral Dhanjee, a member of the public with several pending court cases, who objected to the “unconstitutional reappointment” of a Mauritian judge, Satyabhooshun Domah, to the Seychelles Court of Appeal.
The constitution says a non-citizen may be appointed as a judge for one term of up to seven years. But in exceptional circumstances, the CAA may recommend that the president appoint a non-citizen for a second term for not more than seven years. Domah said that at the time he was appointed he had wrongly assumed his term of office was seven years. He discovered that it was a five-year contract only towards the end of his term of office. With some months to go, he wrote to the CAA offering himself for reappointment. The president of the appeal court also wrote to the CAA, supporting the idea of Domah’s re-appointment and giving grounds that he thought constituted exceptional circumstances.
After considering the matter, the CAA recommended that Domah’s term be extended. Some months later, but still before Domah’s first term ended, the president appointed him for a second term and officially swore him in. None of this, by the way, was made public. Dhanjee claimed there were no exceptional circumstances, that the post was not advertised and that it was filled before a vacancy existed.
The other parties tried to justify Domah’s reappointment but the constitutional court wasn’t persuaded. It found that a foreign judicial appointee had to “vacate that office” at the end of the term for which the person was appointed and was only then potentially eligible for a second term.
Thus, there could be no extension of office – the judge would have to be appointed anew. One argument heard by the court was to the effect that Domah’s appointment was like an austerity measure.
The country ought to be grateful that someone of his standing and experience would accept the relatively low salary offered by the Seychelles. That alone, went the argument, amounted to something of an exceptional circumstance. Just as telling were the court’s comments about the care that the CAA ought to exercise in deciding on appointments.
“The air of mystery surrounding the selection process, (and) the small base from which the selections are made may, on occasions, lead to questionable appointments and, worse still, lend itself to perceived arbitrariness,” it said.
Since the Seychelles was such a small and closed society, even “an indiscreet comment or a chance rumour” was enough to spoil the chances of a local candidate. But the court might as well have been addressing the South African situation when it added: “One should be cautious that friendships, affiliations and obligations may also at times colour recommendations.
“Consensus in the CAA should, therefore, be arrived at without any semblance of external influence or extraneous consideration or bias for or against any candidate, as it would render the appointments arbitrary and suspicious in the eye of the general public.”
The South African public is growing increasingly concerned that exactly these considerations – of affiliations, obligations and external influence – are at play when our Judicial Service Commission interviews and recommends candidates for appointment and promotion. Mere denials, or threats of severe sanctions for commissioners who breach confidences, will not resolve the situation.
As the constitutional court of the Seychelles observed, there’s a paradox: maybe the public had little interest in judicial appointments when it was a secret, executive function; but now it’s supposed to be independent and impartial, public interest and concern just keeps growing.