THIS weekend’s session of the body that helps choose judges for South Africa once again raises many questions about how it operates. As commissioners interview the four candidates being considered for a vacancy of the highest court, many observers will be asking whether the system is working as it should – or whether it is becoming a liability.
The Judicial Service Commission was set up at the time of transition to democracy to replace the old way judges were appointed: previously it was a completely closed system and the public knew nothing about who was being considered for a post, let alone their qualifications. Behind the scenes, the Minister of Justice would talk to the relevant Judge President and at some stage a formal announcement would be made noting the name and credentials of the new judge and the court where he (it was almost never she) would sit.
Sometimes the appointment appeared overtly political with the new judge having little to recommend him as a jurist. Instead it appeared he was owed a favour for some past service to the ruling party, or he was apparently expected to fill the vacancy instead of another potential appointee who was not regarded favourably by the then government.
Always, however, the appointment was made from only a very particular pool of candidates: white male advocates.
The new system had thus to overcome three problems: the appointment mechanism would have to ensure the transformation of the bench in line with the principles of the new democratic constitution; it would have to be open and transparent instead of secret and it would have to ensure that we would never again have people appointed to the bench for political reasons.
Former chief justice Pius Langa recently spoke at a discussion hosted by the Helen Suzman Foundation in which he recalled his complex relationship with the commission. He participated in negotiations that led to its establishment, he appeared before it as a candidate and he chaired it in his capacity as chief justice. From this close association he adds another dimension to the commission's intended agenda: its composition and work should ensure public confidence in the resulting judiciary.
Despite these intentions the work of the commission has become increasingly contentious.
On one side certain populist groupings claim it’s not carrying out its job properly because the bench is still “too white and too male”. To that view another complaint is now added: the judiciary doesn’t know its place and sometimes seems to be waging war on the executive. In other words, according to this view, the commission is appointing judges who are too independent and not sufficiently respectful of the other arms of government.
On the other side, however, there is concern that the commission is hardly open and transparent in its workings, that there are increasing numbers of appointments made – or not made – for political reasons, and that the commission has a very limited understanding of what judicial “transformation” actually means.
These are complex complaints that can’t all be dealt with here, but it does seem that the commission is, to put it mildly, not achieving a good deal of public confidence in its work.
The commission has some serious problems that might make the task harder. One is a lack of institutional memory. As commissioners are replaced en masse following a change in government leadership, it has to start all over again. More than once it has tried to draft guidelines for interviews and for deciding how to rank candidates but these still seem uncertain.
Another is a lack of capacity. It’s simply not possible for the commission to research the work of candidates with anything like the rigour that’s required and as a result commissioners are often not properly equipped for the interviews.
But there are other problems entirely of their own making, or resulting from the way the commission has been allowed to evolve. For example, the questioning process is often highly embarrassing to watch: from the minister down, questions tends to show blatant bias and a pre-determined intention to destroy or boost a particular candidate’s chances rather than to establish, with an open mind, who would be best.
The commission is not only far too big but most members are political appointees whose seats are held at the pleasure of some or other political party or figure: not the way to ensure the best appointments. Langa, incidentally, agrees that the commission is unwieldy. He also says if we were to start again he would recommend that caucusing and lobbying not be allowed. “You should make up your own mind on the merits of the candidates.”
But that’s not how it works now. Caucusing and back-room trading has become so bad that it’s often cited as one of the reasons that top, mainly but not only, white, candidates aren’t prepared to be nominated. There’s a perception that decisions are politically managed and that if you don’t have the right connections or if you’ve upset the wrong politicians there’s no future in the judiciary for you. Along with this perception is a growing certainty that independent-mindedness, always regarded as the hallmark and prerequisite of a good lawyer, is a liability for anyone keen on appointment. Compliant candidates are favoured, their views on legal issues barely probed.
It applies regardless of colour. The appointment of Dikgang Moseneke as deputy chief justice now seems a relic of a golden era when talented jurists of whatever political view had reasonable prospects of appointment and promotion. But after repeatedly being overlooked he must surely believe those days are long over.
So must Judge Phineas Mojapelo, subjected to a grilling by the minister of justice that lasted more than two and a half hours, over a newspaper article he wrote about the process of appointing a chief justice and the role of the commission. There can be no doubt that he lost the job because he dared to voice his criticisms. Do you imagine anyone will follow his example in a hurry?
And what about Judge Fikile Mokgohloa who presented a golden opportunity to the commission for appointing a woman as deputy judge president? With the backing of most of the judges of her division it should have been a certainty. But she was not appointed. During her interview she was questioned about a judgment, in which she had concurred, that found against the commission after a challenge to the way commissioners dealt with certain vacancies in the Western Cape. Do you imagine that other candidates, ambitious for promotion, will be unable to read between the lines?
As for top white candidates, the message is now only too clear: the commission as presently constituted takes the view that whites should be appointed only as a last resort while independent thinkers shouldn’t bother.
Given that attitude there’s no wonder that the leading legal lights, black and white, do not allow their names to go forward.
There’s plenty of legal work for excellent lawyers, it’s paid at a better rate than a judicial salary and you don’t have to expose yourself to the commission’s humiliating decision that you aren’t good enough for appointment.
What does all this have to do with you? The courts and the quality of justice they dispense are only as good as the judges who preside, and there’s no doubt that we are already seeing the negative impact of the commission’s appointments on the stature and quality of work produced by the courts.