In hearings from Monday to Wednesday, the Judiciary Committee will hope to fill the last remaining vacancy on the Constitutional Court
IThe Judiciary Committee (JSC) session from Monday, April 8 to Wednesday, April 10 is a humid mess in many ways.
With only 14 candidates being interviewed for four vacancies in various high courts, including the Constitutional Court, this JSC meeting has been the least productive since the COVID-19 pandemic. It will be. However, it would be a mistake to write it off. There are still many reasons why it's important to pay attention to this week's hearings.
First of all, the JSC wants to fill the last remaining vacancy in the country's highest court, the Constitutional Court. A vacancy was created when Justice Sisi Kampepe retired. The court has not been operating with a full bench of judges since 2016 and has had to rely on the regular appointment of acting judges.
Of the five finalists for the post, two are judges and two are practitioners, making it the first time in 25 years that a law professor has been named as a finalist. Judge Tati McGoka and Judge Ashton Schippers are both senior judges of the Supreme Court of Appeal and have a series of judgments to their names. Advocate Alan Dodson SC returned to practice after five years as a judge in the Land Claims Court.
Although neither of them have any judgments, jurists Matthew Chaskalson SC and Professor David Bilchitz are both widely known as experts in constitutional law. Son of the late Chief Justice Arthur Chaskalson, Mr Chaskalson's publications (including the “bible” SA Constitution) provided some of the early ideas for framing the post-1994 constitution. Birchitz, who received his B1 rating from the National Research Foundation, is known worldwide for his human rights and constitutional law writings.
It will be interesting to see how the JSC evaluates the experience of judicial candidates without written judgments. Recently, with the help of the appointment criteria adopted in April 2023, the JSC has focused on the written judgment of candidates. The JSC evaluated their rigor and legal basis, which is very important. Not surprisingly, several candidates fell short and were not appointed. This is by no means a bad thing. After all, the JSC process should select only the best of the best judges. Judges Matter will use a new scorecard to evaluate how JSCs are implementing these standards.
However, it is not entirely clear whether the JSC will be able to assess a candidate's extensive experience to date, other than in written judgments. For example, how would the JSC evaluate the experience of a law professor who has a vast publication record but has never set foot in a courtroom? Or a law professor who has spent his entire career in the courtroom but has also published? A senior lawyer who doesn't have a single judgment book and a senior judge who has handed down dozens of judgments? Written standards provide an important starting point and allow the JSC to replenish the wisdom of members of academia and practicing law.
The JSC has been heavily criticized for using criteria during the public interview stage of the appointment process, but not during the deliberation and final selection stages. This was brought into stark relief during the Supreme Court of Appeal interview held in October 2023, when 10 candidates were interviewed for four vacancies. Most observers agree that the JSC largely adhered to written standards when interviewing candidates. It is clear that most of the candidates are available for appointment and the JSC will have a difficult time deciding on the final four. In a bizarre turn of events, after three hours of deliberations, the JSC decided to appoint only two candidates and leave the remaining two vacancies vacant. Everyone was shocked.
The NGO Freedom Under Law has sued the JSC to review and invalidate its bizarre decision not to fill two vacancies despite having available candidates. Records filed by the JSC in its case reveal that during deliberations, the JSC abandoned the written standard and the process became discretionary. Commissioners raised concerns they had not raised with candidates at the interview stage and shockingly used those issues to disqualify candidates they did not like. This is a key weakness in the process that the Supreme Court justices and other members must urgently correct before they meet this week.
Other weaknesses in the process include a lack of research into integrity issues. A joint proposal by DGRU and Judges Matter argues that the JSC could improve this by including two additional questions in the survey. This question specifically addresses issues of integrity, such as whether the candidate has ever been involved in a disciplinary proceeding or appeared in a criminal court. . This is the second reason to pay attention to the JSC interview.
The third reason is the specific court in which the JSC is seeking to fill the vacancy. In addition to the Constitutional Court, the JSC will interview candidates at the Electoral Court, the Land Court and the North West High Court.
The electoral court has not been fully staffed with judges since 2021. On the other hand, the amount of work is increasing rapidly. This year alone, we have faced several major incidents, including the battle between the ANC and the upstart uMkhonto weSizwe party, the DA's lawsuit allowing the expansion of overseas voting stations, and the disqualification of Jacob Zuma from running in the 2024 election. There is. Given that independent candidates are contesting national elections for the first time, this number of cases is likely to increase further as the election approaches and thereafter. Therefore, it is important to appoint judges to strengthen the capacity of courts.
Two candidates were shortlisted: Judge Lester Adams and Judge Sheena Yaqoob. Both are High Court judges and have served as acting judges in the electoral tribunal (Mr Adams will hear the ANC v MK case, and Mr Yaqoob will hear the Zuma disqualification case). Both are experienced judges with long track records of reported judgments. It will be difficult to choose one.
The Land Court is a key institution in the struggle for land justice in South Africa. This court has nationwide jurisdiction and is one of the few courts that seeks to reach people where they are. Most of the court's users are vulnerable rural communities seeking compensation for eminent domain and secure ownership of the land they have lived and worked on for generations. Recent legislative changes have given permanent powers to the Land Court, broadening its scope and giving it additional powers. This is why the JSC wants to fill the position of Chief Judge of the Land Court, which has been vacant since 2012.
There are four shortlisted candidates for this judicial leadership post: Judge Zeenat Karelse of the Supreme Court of Appeal, Judges Susannah Cowen and Mzikawakelwana Ncube of the Land Claims Court, and Judge Shahnaz Mia of the High Court. listed as a person. All four candidates have extensive experience in land law, as well as leadership experience.
Mr Karelse has been adjudicating land cases since 2009 and spent six months as deputy president of the Johannesburg High Court, which runs one of SA's busiest courts. Mr Ncube has served several times as Acting Chief Justice for areas including Durban and the South Coast of KZN. Since taking office in 2022, Mr. Cowen has implemented several initiatives to improve the efficiency of the Land Court, including digitizing the case backlog and hiring interns to strengthen the court's investigative capacity, at the expense of taxpayers. He led without any burden. Mia serves as a senior judge and is an active participant in the High Court's committee system that governs the court.
The JSC has come under considerable pressure to appoint women to presiding positions, pointing out that women hold only four of the 16 seats in the powerful Council of Chief Justices, which represents the judiciary and makes important policy decisions. exposed. As Judges Matter has consistently argued (and we have reiterated in our most recent submissions), when 40% of the judiciary is removed from the decision-making table, judicial policy and decision-making quality will decrease.
Although this week has been shortened by the JSC's political members working hard on their election campaigns, it is no less important. The JSC is faced with important decisions regarding the appointment of judges to the Supreme Court, two specialized courts, and the High Court. There are also serious questions about how the JSC will implement its standards for the appointment of judges, especially after years of criticism. Worth noting.
Mbekezeli Benjamin is the advocacy manager at Judges Matter, a civil society judicial watchdog.
