This judicial service commission admitted that their interviews were flawed and that their behavior in the manner in which the interviews were conducted and their motivated recommendations were irrational.
In real life, Professor Balthazar is one of the leading legal minds in South Africa. He decides to remain anonymous so that his daily duties are not affected.
Much of the political coverage last week concerned President Cyril Ramaphosa’s testimony to the Zondo Commission. But the judicial surrender of the Judicial Service Commission (JSC) was arguably a development that was of at least as much constitutional significance as the President’s troubling, never-more-pedestrian performance in the face of forensic investigation by evidence officers.
The JSC surrendered in the face of a review motion by the Council for the Promotion of the South African Constitution (Casac) to dismiss the JSC’s case in April, which led to the recommendation of five candidates for positions in the Constitutional Court. The JSC announced that it would decide in favor of Casac.
That the JSC admitted that their interviews were flawed and therefore their behavior was irrational in the way the interviews were conducted and their recommendations were motivated is truly staggering. This means that presumably based on independent legal advice, the JSC concluded that the Casac review would be successful. It follows that the constitutional body for the appointment of judges acknowledged that it did not behave within its legal mandate at its April meeting
The JSC has now accepted that the Constitutional Court interviews will have to be heard again. Who should absolutely be asked whether the interviews will be heard? In the ordinary procedure, after the bias of an administrative authority has been established, an order to annul the decision and refer it back to the administrative authority would be supplemented by the fact that the body that accepts the rejected matter must consist of new members. But in the case of the JSC, it seems that the same people who acted irrationally asked irrelevant questions and did not make the crucial decisions that were made independently will reappear in the repetition.
That is certainly not the way to restore the JSC’s well-deserved broken reputation.
A court may consider it a judicial encroachment to order the appointment of new members to these hearings in order to restore some confidence in a fair trial. Obviously, this should be done. If not, it is likely that the current JSC, when responsibly interviewing candidates, is pretending to have the legal expertise to be members of the Supreme Court, the commitment and understanding required of a changing legal system, a record that’s true with this one Claim and temperament to be a member of a top court. They will then undoubtedly revert to their earlier decision-making form.
It is certainly possible for the political parties to change delegates, the President appoint four new members, and the Bar and Bar Association do the same. We know the JSC is no longer chaired by Mogoeng CJ, whose tag team performance with Julius Malema against Judge Dhaya Pillay was a key argument in the review motion. At least there will be a new chair. But if the rest of the current JSC completely shocked the nation and justified his resignation by accepting their share of responsibility for undermining the JSC’s legitimacy, a new body could start over.
But that doesn’t stop the matter. Since this self-inflicted debacle, two more posts have become vacant at the Constitutional Court. Aside from Judge Pillay, who understandably refused to participate in any further rampant abuse, the seven who filed in April have filed again. Now that there are four positions to be filled, the JSC must inevitably recommend all seven to the President by submitting a list of the number of vacancies plus three other recommendations to the President. The interviews with only seven applicants become a set piece.
There are a number of eminent judges and senior lawyers, many with a few exceptions, far superior to most of the current list. Understandably, they are reluctant to apply and then face ongoing abuse masquerading as exploratory questions. The key to a process that is worthy of appointment to a top court, which is currently described by many legal commentators as the weakest since its inception and therefore desperately needs a new jurist, is to start the process again by bringing it up for nomination All current applicants are guaranteed an interview, but an attempt is made to attract a larger pool of legal talent to the JSC for examination.
The importance of the fact that the JSC accepts that it had no defense against the Casac review cannot be overestimated. It has admitted that it has not fulfilled its constitutional mandate, and in a democracy those responsible should step down to put constitutional duty above personal or political ego. The fact that the JSC will soon – if it does not get the Hlophe case back on track – will have to deal with impeachment proceedings by a tribunal only adds to the challenges facing this important body. DM