Judicial Selection Process

Importance of the Judiciary

The judiciary during apartheid provided the cover of legitimacy for egregiously oppressive administrative and parliamentary acts. The judiciary did not function independently as a check on executive and legislative abuses of power; it served as their agent. Judge Patricia Goliath’s assertion in Courting Justice that it functioned as a machine to carry out repressive laws is confirmed by the record. Edwin Cameron, who currently serves on the Constitutional Court, pointed out in a 1982 article that judges were “executive-minded, sometimes more so than the executive itself.”

To apartheid’s opponents, the evidence was overwhelming that judges failed to rule in the interests of justice even when the law allowed them to do so.” [T]here …had been cases of judges availing themselves of opportunities to advance the aims of justice and human rights,” JeremySarkin summarizes, but “these were few and far between.”

The post-apartheid Constitution rejected executive and parliamentary supremacy, replacing it with constitutional supremacy and the rule of law as founding values. The Constitution—recognized by constitutionalists as the world’ s premier human rights constitution, asserts in the section titled Founding Provisions: ” The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

The establishment of Constitutional supremacy and the elevation of the rule of law meant South Africa’s judicial function would be to advance the ideals and values of the Constitution. To do so would require a very different concept of a judiciary and of its functions. The Constitution addresses this by creating an independent judiciary “ subject only to the Constitution and the law, which they must apply impartially and without fear, favor or prejudice. ” Not only are persons or “organs of the state” prohibited from interfering with the courts, they are obliged to “ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts” and are to be bound by orders or decisions issued by a court.

These courts were intended to be important agents in the country’s transformation to a human rights-based constitutional democracy. To fulfill this expectation it would be essential that the judges constituting these courts be sympathetic to newly imposed responsibilities and be ready and able to assume them.

New Democracy’s judicial appointment process

All judges in South Africa were appointed during apartheid and appointments continued under the new Constitution to be the way to the bench. The appointment processes, however, are very different. During apartheid, persons were appointed by the President, though there was, as the Deputy Judge President of the Supreme Court of Appeal commented,“a widely held view that the State President was merely a rubberstamp and that the Minister of Justice in fact made the appointments.” Whoever made the appointments, they were made behind closed doors in a process ill-fitting the New Democracy’s values of transparency and accountability. An out-in-the-open, accessible and more inclusive process was considered pivotal if the rights enumerated in the constitution were to be realized.

The importance placed on the appointment process is indicated by the extensive discussions given this matter during constitutional negotiations. The final Constitution—differing in details but not in intent from the interim Constitution, vests appointment power with the President. The Constitution delegation of appointment power to the President differs for different positions and different courts. But all appointments require the President to consult with a newly created Judicial Service Commission (JSC).

The JSC composition, according to the Constitution, consists of the following 21 permanent member:

• South Africa’s Chief Justice, ( who is also chief judge of the Constitutional Court) to preside
• the President of the Supreme Court of Appeal
• one Judge President designated by the pool (consisting of less than a dozen Judges President)
• the Minister of Justice or designee
• two practicing advocates (i.e., trial lawyers comparable to British barristers) nominated by their professional colleagues and appointed by the President
• two practicing attorneys (i.e., lawyers comparable to British solicitors) nominated by their professional colleagues and appointed by the President
• one law professor designated by the law teachers at South African universities—there are 19 law schools in South Africa
• six members designated by Parliament’s National Assembly, at least half of whom must come from opposition parties
• four members designated by the National Council of Provinces, the second house of parliament, with a supporting vote of at least six provinces; and
• four presidential designees.

The Judge President of a high court for which an appointment is being considered and the Premier of the province where that court is located are also designated to serve when candidates are being considered for appointment to that court.

Judicial Service Commission Procedure

The JSC invites nominations for specific court vacancies. Nominations are then submitted. Given the size of the judiciary (the end of 2008 there were 217 permanent judges sitting on South Africa’s higher courts), awareness of the vacancies to be filled is known within the legal profession with or without the JSC postings.

Those nominated who want to be considered submit their responses to a three-section questionnaire containing 20 questions.

The first section solicits such personal information as date of birth, education, employment history, “anything in [the candidate’s ] state of health that should be disclosed to the Commission,” and membership in legal organizations. It also asks for the number and ages of children—a request that evokes suspicion, for some women, of an underlying sexist assumption about parenthood. Section 1 also asks the candidate for information about membership in community and other organizations, including secret organizations—information that may help in assessing a commitment to the New Democracy’s values and ideals and may well help in identifying engagement in the anti-apartheid struggle.

The second section elicits information about judicial experience. Many in the legal profession serve as acting judges. It is common for candidates to have been “acting” for varying periods of time and in a number of courts; candidates may also have served or be serving on specialized courts such as the Labour Court or Land Court. So, it is likely that nominees can provide information about the “particulars” of their appointments, significant cases for which they have written judgments, cases which have been “reported,” and cases in which they gave judgments that were unsuccessfully and successfully appealed. The questionnaire also asks for publications in and out of the law field, reviews of such publications, citations of their writing in judicial decisions and “whether the citing was with approval.” The last question in this section asks for the nominee’s “most significant contribution to the law and the pursuit of justice in South Africa.”

Section 3 poses but three questions: “any circumstance… which may cause you embarrassment in seeking the appointment”; “any relevant matters which you should bring to the attention of the Commission”; and any offices of profit held, past and present, and whether related assets have been divested.

The written responses to the questionnaire are, of course, supplemented by letters of support.

Following the submissions, the JSC reduces the number of possible candidates to a short list and then interviews them. The interview process, which may seem inviting and friendly to some interviewees is intimidating to many whose interviews I have attended and with whom I have spoken. Each interviewee is placed alone at one side of a rectangular arrangement of tables. The interviewee is thus bound on three sides by JSC members. With the inclusion of High Court Judge Presidents and provincial Premiers, members may number a good deal more than 21. “I have seen some advocates and judges squirm under the pressure of sustained questions [at the JSC],” one journalist wrote, confirming my own observations.

The interview sessions are open to the public but, other than journalists, few attend.

Qualifications

The Constitution’s specified qualifications are “[a]ny appropriately qualified woman or man who is a fit and proper person.” There is the additional qualification of citizenship for Constitutional Court judges.

The stated qualifications both invite and exclude. They implicitly invite attorneys, magistrates and academics to apply. Previously almost all judges were selected from among advocates who, like English barristers, are the legal profession’s litigators. The selections were usually from among the advocates with years of experience—advocates who had taken “silk”; i.e., the senior counsels with SC appended to their names. Under the New Democracy Constitution, attorneys, magistrates and academics have been considered and have been appointed. Three of the judges appearing or featured in Courting Justice reflect the new standards— Constitutional Court Justices Kate O’Reagan and Yvonne Mokgoro were both law professors before their appointments; and Judge Tandazwa Ndita was a magistrate.

“Appropriately qualified fit and proper persons” also imply the inclusion of blacks and women. In the years preceding the new Constitution there had been but one black and one female ever appointed and the black judge was appointed only when, as Justice Mokgoro asserts in Courting Justice, ” there was light at the end of the tunnel.”

The outcome of the constitutional negotiations kept the apartheid courts, changing the names—the Supreme Courts were renamed the High Courts and the Appellate Division of the Supreme Court, the apex court, renamed the Supreme Court of Appeal; and the negotiations assured continued employment on the bench of the apartheid judges. The only structural change in the higher court system was the creation of the Constitutional Court. 

Given the judiciary’s record during apartheid and the homogeneity of the judges who made that record, the ability of the judiciary to advance the country’s transformation to democracy and the judiciary’s very legitimacy required that the judiciary itself be transformed. At the core of the judiciary’s transformation was to be “the transformation of the judiciary by race and gender.” This phrase, repeated so frequently as to sound like one long hyphenated word, had and has the formal allegiance of everyone representing the government, judiciary or legal profession. At the core of this phrase is the direction to appoint blacks and women. The Constitution directs the judicial selection process to give diversity priority. “The need for the judiciary to reflect broadly the racial and gender composition of South Africa,” the constitution mandates,” must be considered when judicial officers are appointed.” The President, the Chief Justice, the Minister of Justice and Constitutional Development, members of the JSC, Judge Presidents and Deputy Judge Presidents (the latter two being.the courts’ leadership), and leaders of the organizations representing the legal profession –i.e., every person in every office and institution involved in the judicial appointment process—has more than once asserted the imperative for increased representation of blacks and women.

While the “appropriately qualified fit and proper person” requirement means to include those previously excluded, it also intends to exclude those who had previously assumed entitlement—namely, persons sympathetic to the apartheid government’s lack of respect for basic notions of justice and human rights. The Constitution makes this clear in the oath it requires of all before assuming the position of judge or acting judge. To become a judge one must swear or affirm that she or he “will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.”

The JSC questionnaire, as indicated previously, aids in assessing whether the nominee is committed to the values and ideals of the human- rights-based constitutional democracy. Membership in organizations that worked to advance democracy provides a clue. One of the candidates, who had joined the pro-democracy African National Congress (ANC) only shortly before submitting his questionnaire ,was asked by George Bizos, one of anti-apartheid’s outstanding advocates, “Did you think it might improve your chances were you to be an ANC member?” At the same interview session another candidate was pressed as to whether she felt she had done enough to help in the struggle.

That a commitment to human rights is required did not discourage some with a strong pro-apartheid record from seeking appointment. An advocate with 35 years of experience at the Pretoria bar and three years as an acting judge was asked by the same George Bizos whether he had “once raised your voice against the state or the agencies of oppression and say that you thought what was happening was wrong?” Bizos, prefaced his question by stating he didn’t “hold it against” the interviewee that he was “the favourite counsel of one minister of justice after another and acted for generals for amnesty before the TRC [Truth and Reconciliation Commission].”

In addition to the constitution based explicit and implied qualifications, the JSC imposes a number of practical qualifications, such as 10 years of experience in law and service as an acting judge. The latter requirement is not gender-friendly. Acting judges are appointed by the heads of each court. These are the Judge Presidents, all of whom are men. The Judge Presidents also appoint acting Deputy Judge Presidents—all but one of whom is male.

Criticisms of the JSC

The judicial selection process is not flawless, an assessment made by critics with loud voice and bold print. Most of the criticism is directed at the JSC. Critics charge that the JSC is too heavily weighted with presidential and parliamentary appointees, and in this sense is too political; that the JSC’s assessments are too subjective with much room for member biases to be determinative. The specific alleged biases are racism favoring blacks, racism favoring whites, and of particular relevance to Courting Justice, sexism.

The JSC has often stated that it takes seriously its obligation to transform the judiciary by race and gender. It gave it prominence for example, in its first annual report, asserting that “[t]he Commission pays particular attention to this requirement when it considers applications for judicial appointment.” 

 In its guidelines to Commissioners when questioning candidates for judicial appointments, JSC directs the commissioners’ attention to the importance of diversity—

[i]t is a quality without which the Court is unlikely to be able to do justice to all the citizens of the country. It is a component of competence. The court will not be competent to do justice unless, as a collegial whole, it can relate fully to the experience of all who seek its protection.

The JSC devoted its entire meeting in October 1999 to the transformation of the judiciary, as did the all male Heads of Court in April 2005. There have been numerous conferences, formal discussions and symposia about the importance of the transformation of the judiciary by race and gender. All who have considered the topic endorse the necessity of appointing more blacks and women.

Yet, the assertions of its commitment to appointing women are not supported by the record. At the end of 2008, 35 of the 217 judges serving on the higher courts were women—16.13% and 77 were black men—35.48%; of the 9 heads of court, not one was a woman and all but one were black men; and of the 8 deputy heads of court, including acting deputies, one was a woman and 6 were black men. The quickly made defensive response that “qualified” women are not in the pipeline is unconvincing given that a majority of law students are women, regarded by the faculty to be the best students and the pipeline defense fails to explain why there were enough black men in the pipeline to warrant an appointment record that dwarfs the record for women.

Sexist assumptions and comments are ample at JSC sessions. At JSC’s first public interviews, Kate O’Regan, then Professor at the University of Cape Town Faculty of Law, was a candidate for appointment to the new Constitutional Court. As reported in the Sunday Times,

[S]he had bowled over the interrogators with her brilliance and her obvious capability. But, it seems, that was not enough.

She had young children, one of the commissioners pointed out. If appointed, would she be able to make adequate arrangements for their care while she was at work?

Sexist comments were made and discriminatory assumptions were clear at interviews of five women being considered for the Constitutional Court and one woman being considered for the position of Deputy Judge President. These were interviews I attended.

One candidate for the Constitutional Court, who at that time was not resident in South Africa, was asked what it would take for her to return to South Africa. Before she could respond, another JSC member answered she needed a South African boyfriend.

One woman, Anne-Marie de Vos, being considered for Deputy Judge President in the High Court where she then served as the only woman judge, was treated, in my judgment, to harsh and hostile questioning.

The subsequent Sunday Times report of her interview, headlined “quips and naked prejudice show how much attitudes still need to change” provides the flavor and import of the questioning.

Her Judge President…lost no time in letting the commission know that she had behaved in a way he found inappropriate. However, as the exchange between [the Judge President] and Judge de Vos unfolded, she emerged as a strong woman who had stood up for herself….

Not one other woman has been appointed to [that] Bench. To get there and to survive she has had to overcome considerable prejudice: the only woman, the only openly gay judge in her division, an Afrikaner regarded with suspicion by her older white Afrikaans-speaking colleagues, for whom she seems to represent the values of a world gone wrong.

She applies for a promotion. She and a male colleague who also applied for the position are both promised a stint to act in the position. This will enable their boss—and the commission—to judge their suitability. He gets his turn to act. She doesn’t.

So she takes it up with the Judge President….He takes exception to this because, as it turns out, [in his mind] there is a perfectly reasonable explanation for how it happens that her male colleague will come to the commission with the advantage of direct experience of the job while she will not.

She is cast, through her interrogation before the commission, as an uppity woman. Someone who doesn’t know her place….

[She was asked how she got along with her colleagues.] Fine, she said, except for some of the older ones. Commissioners pressed for more details. Some of them were sexist, she replied.

“Sexy or sexist?” asked a commissioner flippantly.

Worse was to come when one of the interrogators—a man and the national head of the Black Lawyers Association—asked her how colleagues (all of them male, remember) related to her. Wasn’t it a “hindrance” that her partner was a woman…?

“Does it matter?” asked Judge de Vos. Referring to her sexual orientation. She said it ought to make no difference to any judge who had accepted the values of the Constitution….

One of the most telling features of this exchange is that no one objected; not a single voice was raised to assure Judge de Vos that the question was out of order; that the constitution was on her side….To an observer it seemed she had been abandoned.

Next time the Judicial Service Commission indulges in a periodic soul-searching over the lack of women on the Bench,…members should reflect….For one thing it illustrates that judges are not the only people who should undergo sensitivity training—those choosing them could also do with some help.

For another, it shows how little has changed over the past twelve years.

Persistent Sexism

Former Constitutional Court Justice Albie Sachs stated clearly the persistence and pervasiveness of sexism when he wrote:

It is a sad fact that one of the few profoundly non-racial institutions in South Africa is patriarchy. Amongst the multiple chauvinisms which abound in our country, the male version rears itself with special and equal vigour in all communities. Indeed, it is so firmly rooted that it is frequently given a cultural halo and identified with the customs and personality of different communities. Thus, to challenge patriarchy, to dispute the idea that men should be the dominant figures in the family and society, is seen not to be fighting against male privilege but as attempting to destroy African tradition or subvert Afrikaner ideals or undermine civilized and decent British values.