Former judge Robert Nugent urged reform of the Judicial Service Commission and stressed the need to prioritise judicial independence.
Retired judge Robert Nugent has told a panel of legal experts that there should be no room for “political meetings” on the Judicial Service Commission (JSC).
If South Africa wants a strong judiciary, priority attention should be given to ensuring that those responsible for appointing judges are the “right people”, he said during a webinar hosted by the Centre for Development Enterprise (CDE) on Tuesday.
The centre has released the fourth in a series of reports on South Africa's new government's priorities and how to strengthen the justice system.
It is the JSC's responsibility to select judges to serve in South Africa's courts and to investigate complaints against judges, but many legal practitioners consider the JSC to be politically motivated and inexperienced for the gravity of its task, meaning some of the country's best lawyers miss out on office.
In 2021, the South African Council for the Promotion of the Constitution forced the re-conduct of JSC interviews for vacant Constitutional Court seats after questioning of candidates took on a political trajectory.
At the time, Economic Freedom Fighters leader Julius Malema questioned the candidates about court decisions going against his party, and the interviews devolved into personal attacks on some of the candidates.
During his interview for the Supreme Court in 2022, Gauteng presiding judge Dunstan Mlambo was questioned by Malema and his lawyer Dali Mpofu about “rumours” of sexual harassment. Mlambo denied the unfounded allegations and his responses were deleted during the same hearing. No formal complaints of sexual harassment have ever been made against the judge.
The 23-member committee will be made up of members of Parliament, members of the National Council of Provinces (NCOP), members of the bar and four members appointed by the President, with the Chief Justice or Deputy Chief Justice chairing the committee.
“I think it's entirely possible to adjust the composition of the JSC. At the moment we have 11 political appointees and then four who are appointed by the president,” Nugent said on Tuesday.
“That may have been the right setup 30 years ago, but we've moved on and it's definitely not the right setup now.”
He said JSC members must be qualified: “They must be people of integrity who will carry out proper investigations into whether they are fit or suitable to be a judge.”
Appointment of JSC members by the National Assembly creates a situation where “anyone nominated by any political party will naturally be appointed,” Nugent added.
“Parliament has a duty to consider whether the people nominated by political parties are in fact qualified to be appointed.”
“The appointees, the politicians who are appointed to the Judicial Committee, [should not be there] MPs represent each political party. They are there to make decisions in the national interest, regardless of party affiliation.
“There is no room for political meetings in their decision-making. There is no room for political parties to dictate to them what decisions they should take. They should take decisions independently, not as politicians but as representatives of the country.”
Prior to Nugent, CDE Anne Bernstein had said weak judges could pose a threat to the rule of law and that the country's judiciary was being weakened by an administration that had failed to fund the courts.
“A modern economy needs skilled judges. Our Constitution is a complex document. Our economy is complex, with complex contracts, rights and responsibilities at home and abroad,” Bernstein said.
“We need learned and skilled judges to adjudicate on these complex rules and relationships. Our country is battling state takeover and corruption on an industrial scale and we need judges with experience and legal expertise.”
In this context, she said, the process of selecting judges is crucial: “The judges who would naturally be thought to have the most knowledge required of a judicial officer are vastly underrepresented. [on the JSC].”
Bernstein said newly appointed Chief Justice Mandisa Maya must lead the charge to reform the commission and strengthen the judiciary to counter attacks on the constitution.
Also on the panel was Mbekezeli Benjamin, research and advocacy officer at Judges Matter. Benjamin referred to the 2021 judicial commission interview fiasco, saying then Chief Justice Mogoeng Mogoeng had failed in his leadership role.
Since taking over as Mogoeng, former Supreme Court chief justice Raymond Zondo has shown leadership by convening commissioners for a workshop ahead of the Supreme Court's October 2021 hearing to “thoroughly discuss” their conduct and how they should have acted. After that workshop, Zondo said there had been “modest improvements”.
Benjamin said the JSC, being a constitutional body, should have proper systems, rules and procedures in place and not “rely on whims”.
He said for the past three years, Judges Matter has been urging the JSC to have written standards governing how interviews should be conducted.
He said the commission should set out a code of conduct for members, regulate who can be appointed and provide guidelines for the bodies that make up the JSC.
A code of conduct should set standards of individual behaviour as commissioners, “and if those standards are not met there should be a mechanism for enforcement in the form of a power of removal,” he said.
The JSC has the right to write to the National Assembly and tell it that the MP has not acted in accordance with the established standards and the National Assembly should remove the chairman.
He said to the JSC's credit, it has adopted written standards that state the qualities needed to become a judge, including experience working in a courtroom, a good work ethic and a commitment to integrity.
“But of course, these standards are not going to be automatic and what we are now looking for are activities that should be consistently implemented at every interview and even before the interview. [the interviews]”The JSC should start performing a strategic human resources function,” Benjamin said, as Judges Matter has been arguing.
Jeff Budlender SC said the JSC “just doesn't have the experience, skill or ability to judge who can do a good job and who can't do a good job”.
He said there was a need to appoint more judges to the JSC as judges observe and evaluate the work of lawyers on a daily basis.
“It seems unreasonable for us to think that [judges] It will likely play only a small role in identifying who will be the most effective judges.”
There was also a need to exert more pressure on institutions that appoint JSC members, such as the president, parliament, professional bodies and the NCOP, to “ensure that they discharge their duties properly.”
“The appointment of members to the Judicial System Commission is not a matter of one for my chairman, one for your chairman, one for me, one for you and three for others. This is a very serious task and we need to find ways to discipline and structure the process of appointing members to the Judicial System Commission because if we have a weak Judicial System Commission, we will have a weak judiciary,” he said.
The role of the JSC chair also needs to be scrutinised, Budlender said, adding: “Unfortunately, in many cases over the last 30 years, we have been deeply deficient in that regard.”
He said chairing the JSC “has become just a traffic control job, but it's actually much more fundamental than that.”
“It is the chair's job to ensure that the interview is conducted with the right focus and discipline. It is also the chair's job to ensure that irrelevant and inappropriate questions are not asked and that the candidate is not taken by surprise.”
“It’s also the chair’s job to make sure candidates are treated with dignity and respect, it’s not just about showing them respect.
“They're all looking for jobs. They're applying for jobs. They should be willing to be firm and answer tough questions. But the insults, the political insults and the posturing directed at candidates who can't answer for themselves because they're candidates really shouldn't be tolerated. We've seen too much of that.”
