Another blow to the credibility of the JSC?

At first blush it may appear as if South Africa’s judges and senior constitutional lawyers have all been struck by a remarkable bout of humility and lack of ambition – not traits your average lawyer or judge is usually suspected of. Why else would no credible candidate (except Labour Appeals Court judge Ray Zondo) allow him or herself to be nominated for a job on South Africa’s Constitutional Court?

The Judicial Service Commission (JSC) announced yesterday that no one was shortlisted for the vacant position on the Constitutional Court because there were not a sufficient number of suitable candidates to shortlist for this job (despite an extension of the deadline for nomination to the highest court).

Apparently not even Justice Mandisa Maya of the Supreme Court of Appeal (who is currently acting on the Constitutional Court) put her name forward for nomination to the highest court. Neither did any of the other female candidates who might plausible stand a chance of being appointed to the Constitutional Court.

This might seem curious, as currently only two of the eleven serving judges on the Constitutional Court are female. If one were to take seriously the claim by the government and some members of the JSC that they were committed to apply section 174(2) of the Constitution when they considered judges for appointment – a section that states that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed” – then one would have thought that the JSC would clamour to  recommend a number of credible and competent female judges for appointment and that the President would appoint a woman judge to the vacant position.

Section 174(4) prescribes the procedure for the appointment of ordinary judges to the Constitutional Court (that is, Constitutional Court judges other than the Chief Justice and the Deputy Chief Justice):

The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

1. The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.
2. The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.
3. The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.

This means that when there is  one vacancy on the Court (as is presently the case), the JSC must select four appointable candidates and must submit this list of four names to the President who can then select one of the four names nominated by the JSC after the requisite consultation with the Chief Justice (and opposition parties). One assumes that the JSC decided that there were not four appointable nominees and the process was thus aborted. The reluctance of suitably qualified women judges or academics to put their names forward during this round could be explained in several ways.

First, it might be that all the strongest women candidates currently believe that the JSC and the President are not serious about gender transformation of the bench. If this were to be so, the question would arise as to why this perception could have taken hold. Some might argue that the appointment of a Chief Justice (whose previous judgments exhibited a rather lenient approach to sexual violence against women) might have helped to create this perception. The perception could also have been fostered by the previous round of appointments when only one of the four candidates appointed to the Constitutional Court was a woman, despite the fact that several strong female candidates were in the running for appointment.

Second, a perception might have been created that the Chief Justice and the majority of members of the JSC had already decided who it wanted to appoint to the Constitutional Court this time around and that any process in which candidates were interviewed would be little more than a sham aimed at providing some credibility to a formal exercise whose outcome was predetermined. (I have no credible information indicating that such a perception had been created or if it had been created, how it might have arisen and who the preferred candidate might be.)

Third, the fact that so few candidates were prepared to put their names forward for appointment to the Constitutional Court may well be based on a lack of trust in the JSC and the process it follows to decide who to nominate for appointment. Given the way in which it has conducted itself in the past, this body is perhaps suffering from a serious lack of credibility. The sycophantic behaviour of some members of the JSC during the interview conducted last year with the only “nominee” for the post of Chief Justice, might have helped to create this distrust in the ability or willingness of members of the JSC to conduct real and helpful interviews with candidates.

Moreover, the persistent failure by almost all JSC members to engage nominees on their judicial philosophy and their attitudes to the substantive legal issues, may have disheartened most credible candidates who may have felt that their intellectual abilities, their progressive judicial philosophy and their compassion will not be noticed because of a lack of substantive probing questioning put to them and, if it were to be noticed, would play no role in the decision on who to nominate or appoint.

Why do JSC members seldom ask a nominee about his or her views about the role of the courts in transforming the common law by applying section 39(2) of the Constitution to interpret and develop the common law in order to bring it in line with the spirit, purport and objects of the Bill of Rights? Such questioning would provide the JSC with telling information about the transformation credentials of the candidate. Why do members of the JSC almost never ask a candidate about his or her views on “reasonableness review” in social and economic rights cases and whether this standard of review was appropriate? Why are candidates almost never asked how they view hate speech and its limits?

Why are candidates not confronted with questions about the nature of our democracy established by our Constitution? It would be helpful to know whether a candidate is a strong supporter of the view that our Constitution requires a form of participatory democracy and that it requires judges to act decisively to protect and advance the rights of citizens to enable them to participate in our democracy. It would also, surely, be helpful, to know whether a candidate slavishly supports a narrow notion of representative democracy and envisages a limited role for courts in safeguarding the democratic rights of citizens.

Surely both the Chief Justice and the other members of the JSC need to do serious introspection about the process through which Constitutional Court judges are nominated and appointed to the Constitutional Court? Surely one can find a way to balance the requirement to appoint an intellectually curious, highly intelligent, technically competent and principled judge on the one hand, with the requirement to appoint a compassionate, progressive judge imbued with the transformative values of the Constitution on the other?

But to do that, one will have to be prepared to appoint judges that are capable and willing to engage in robust intellectual debates with the members of the JSC and incumbent members of the Constitutional Court (after appointment) and will interpret and apply the Constitution with integrity and in a fearless manner. The question inevitably arise whether the JSC is prepared to nominate and the President is prepared to appoint such judges, or whether they would rather appoint an altogether more timid, conservative and intellectually pliant crop of judges.

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