JSC – No, I Don’t See

by Jessie

This past week or so has seen this acronym bouncing from headline to headline. It’s likely that you’ve head the JSC being called a “wild animal”[1]. You probably heard of an advocate resigning from the commission, and all of this has left you confused, and fed up.

Let’s decipher what’s been going up, and show you why you deserve to feel fed up (as well as who you can be fed up with!).

Firstly, let’s talk about who the JSC are and what they do.

The JSC, or Judicial Service Commission, is the body in South Africa which deals with, among other things, the short-listing and appointment of judges (together with the President) for the high courts and the Supreme Court of Appeal. It also recommends candidates for Constitutional Court judicial appointments (which the President then may take into regard upon deciding on a new Constitutional Court judge). (Interesting? Find out more in s 174 (3) of the Constitution.)

And so when two positions on the Supreme Court of Appeal became available, the Commission had to accept nominees, short-list these nominees and from this short list make their recommendations. These recommendations are then given to the President, who, unless he has a valid objection, appoints the judges.

The trouble with this whole process comes into play when you ask this question: what requirements do the JSC have to fulfill?

Good question.

For that, there are two pieces of legislation that bind the JSC: The Judicial Service Commission Act (surprised?) and the Constitution.

Let’s deal with one at a time.

In terms of the role of the JSC, the Judicial Service Commission Act focuses on its role to hold judges to account – in terms of competency and their actions. As close as it gets to talking about the recommendation of judges for appointment can be seen in the Preamble, which states that:

Section 178 (4) of the Constitution provides that the Judicial Service Commission has the powers and functions assigned to it in the Constitution and national legislation.

Also, section 5 goes on to say that:

The Minister must by notice in the Gazette , make known the particulars of the procedure, including subsequent amendments, which the Commission has determined in terms of section 178 (6) of the Constitution.

The power given to the JSC is therefore not given specifically in the Act, but rather in the Constitution. Section 178 of the Constitution deals with the JSC entirely. The first three sub-sections deal with who makes up the Commission and it is after these sections that the real power provisions come into play (see below).

Section 178 (4) The Judicial Service Commission has the powers and functions assigned to it by the Constitution.

Section 178 (5) The Judicial Service Commission may advise the national government on any matter relating to the judiciary or the administration of justice, but when it considers any matter except the appointment of a judge, it must sit without the members designated in terms of subsection (1) (h) and (i).

Section 178 (6) The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by majority of its members.

(Section 178 (7) and (8) go on about the members again.)

From these provisions it’s clear to see that the JSC has the power. Quite literally, that’s what it says. These provisions state that the JSC may advise on any matter, as seen in s 178 (5), as well in any way s 178 (6).

Now that’s a lot of power. This means that because there isn’t any specific procedure set out for them to follow, they (the majority) can follow whatever procedure they’d like. They must just notify the public about it in the Gazette (as per s 5 of the Judicial Service Commission Act).

Finally, we’re getting to the meat of it all.

Now if you flick back two pages in your Constitution, you’ll stumble upon section 174, which is headed “Appointment of Judicial Officers”. This section appropriately deals with the general requirements for a candidate to be successfully appointed as a judge. It also shows who appoints who (s 174 (3) as mentioned above).

Let’s discuss these requirements: the notorious s 174 (1) and (2). Now, they shouldn’t be notorious. They are completely logical and harmless – or so we thought.

Section 174 (1) Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.

Section 174 (2) The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.

So the sticky bits are the terms “fit and proper person” and “reflect broadly”, as well as “must be considered”.

Remember the process for the SCA: the nominations of potential judges; then the short-listing by the JSC (the procedure of which is not made public) of these nominations; the interviewing of the short-list and the recommendation of successful candidates to the President who then appoints the candidates.

Last week saw the interviews of three people short-listed for the two SCA positions: two white men and an Indian woman.

Now you can see that section 174 (2) presents a big issue dealing with transformation: what does “reflect broadly” mean? And is consideration mandatory, in “must be considered”? How big a weight does s 174 (2) play?

There are various views it. One such view resulted in the resignation of Izak Smuts from the JSC after a paper he wrote on the matter was leaked. This paper said that if the JSC were going to expressly exclude white males from appointments, that they should state this as their reason and be open about it.

This, however, contradicts the outcome of these interviews: that – along with the only woman candidate – one of the white men, Advocate Willis, was recommended for appointment to the SCA. This recommendation, argues Richard Calland in his M&G article, had not as much to do with race as it had to do with politics.

He based this argument on the haphazard procedure that the Commission followed in putting questions to the candidates. He found that through these actions it seemed that the decision had been made even before the interviews: a decision not on race but for a complaisant, politically-suave candidate.

A quick synopsis on the interviewing technique: human-rights lawyer Clive Plasket was grilled for two hours about the transformation provision s 174 (2), and what he thought ‘broadly’ meant.

Fair enough?

Of course it should be asked. But the trouble was, that was the only thing he was asked.

As seen in his famous last words (when he was asked if he’d like to add anything): “I was hoping,” he says, “to have been asked about my competence and long track record as a judge.”[2]

To the other white male candidate, not one word of ‘transformation’ was put to him. They joked around, and he was recommended.

Why? Now that is the question. It might well be because ‘broadly’ meant to look at the current composition of colour and race in the SCA, and to decide that it was represented enough in terms of race and gender, and that therefore a white male could be represented. It might not.

Another place we all need to be asking ‘why’ is the recommendation of Halima Saldulker. This is the Indian woman judge – a dream candidate for s 174 (2), right? Sure. But let’s talk about s 174 (1). The President of the SCA begins the interview by stating that through her service to the SCA as an Acting Judge, her colleagues on the SCA found that she was not competent enough to be an SCA judge.

And through this, she is still recommended. She is still recommended without the Commission giving reasons as to why she is, in fact, competent to be a judge on the SCA. And why colleagues of this court who had worked with her in the past and didn’t think she was ready were wrong.

The JSC has left the public in the lurch.

Why?

Because they’re allowed to. Because they can choose their own procedures, and for those procedures they can choose any line of reasoning that they wish with which to back it up – be it the real reason or not.[3]

The problem with this is it makes us doubt the very committee that selects the authority of law, and by extension of it, the law itself.

The JSC needs to be held to account – they need to illustrate some transparency so we can see what’s really going on.

[1] Thank you, City Press, for your colourful metaphors! Accessed at http://www.citypress.co.za/columnists/in-the-jsc-we-trust/ on 15 April 2013.

[2]Richard Calland, JSC Attitude Opens Door to Conservativism, viewed at http://mg.co.za/article/2013-04-12-00-jscs-attitude-opens-door-to-conservatism on 16 April 2013.

[3] S 5 of JSC Act.