Not-for-profit organisation Freedom Under Law (FUL) has recommended that the Judicial Service Commission (JSC) be reconstituted to include more senior judges and fewer party-political appointees.  

This comes from the organisation’s report ‘A Review of the Activities of the South African Judicial Service Commission 2009 to 2022’, which highlights key deficiencies in the composition and operation of the JSC and makes remedial recommendations and proposals to address the structural problems inherent in the JSC, as well as the challenges in its current processes.

FUL argued that, for years, the JSC had been prone to political interference in the appointment of judges.

Lead researcher and author of the report Calli Solik said the JSC’s Sifting Committee, which compiles a shortlist of candidates to be interviewed by the Commission, should reflect on how it decided on suitable candidates.

The report also highlighted the various criticisms levelled against the Sifting Committee’s interview process.

These include, “the clumsiness in its processes that is the result of an overlarge and eclectic body; the frequent failure on the part of the Chair to maintain fairness; the lack of clear guidelines or criteria in assessing candidates; great inconsistency in the depth and length of the questioning of candidates; the JSC’s understanding and implementation of its constitutional mandate in section 174(2); and party-political interference.”

The FUL said a major issue of the interviews was the lack of guidelines on how they arrived at their candidates.

FUL calls for clear guidelines for the interview process.  

Solik also suggested the strengthening of the JSC’s secretariat, in-depth interviews and greater standardisation of the interview process.

She added that questions should be required to cover specific areas of accountability and the JSC should produce its reasons on how a particular candidate was appointed to reduce political interference.

Professor Emeritus of Public Law at the University of Cape Town and Freedom Under Law board member Hugh Corder said the appointment and accountability of judges was critically important.

He said FUL had watched with dismay as the JSC failed to maintain the standards set by the transformative ethos of the South African Constitution since 2009.

He said the FUL board resolved in January to commission research into mandate appointment and accountability of the JSC.  

FUL executive director Judith February said judicial selection, appointment and accountability were key aspects of the judicial system which was "fit for purpose and operates on the bases of integrity”.  

She said over the past decade South Africa’s constitutional democracy had come under scrutiny, particularly relating to politicians and those who were under pressure from the recent damning findings of the Zondo Commission and even the legal fraternity.

She cited suspended Public Protector Busisiwe Mkhwebane “protecting” former President Jacob Zuma and some within the African National Congress and called out "narrow political focuses as factional battles are at play”.

She noted that many South Africans had criticised how matters had been politicized in the JSC, but added that despite pressure, the JSC had proven to be a resolute.

She emphasised that the strength of the judicial arm was a national constitutional asset and it should not be taken for granted.