The inauguration of SA’s new chief justice, Mandisa Maya, comes while important dynamics threaten and weaken the judiciary. For years we have boasted of our impressive, independent judiciary as one of the country’s comparative advantages. We can no longer take this for granted.

Mostly since 1994, the courts have demonstrated independence from the executive and discharged their duty with conspicuous vitality. Now warning lights are flashing. One potential hazard is dysfunction and politicisation of the Judicial Service Commission (JSC), the body charged by the constitution with interviewing and recommending candidates for appointment to the bench.

The recent designation to the JSC of MK parliamentary leader John Hlophe, a former judge president impeached by parliament earlier this year for gross misconduct while serving on the bench, is symptomatic of a broader problem. The JSC is not functioning effectively.

It is important to emphasise the importance of the JSC’s role: to appoint judges who are the guardians of the constitution and the rule of law and whose competence and integrity underpin this vital third branch of government.

A modern economy needs skilled judges. Our constitution is a complex document and we have a sophisticated economy involving contestation over complicated contracts, rights and responsibilities. Learned and skilled judges are needed to make judgments on these complex rules and relationships.

A country grappling with elite looting of the state and industrial-scale corruption needs judges of considerable legal expertise. Criminals use their ill-gotten gains to hire large, smart legal teams, which often outgun public prosecutors with limited resources. It remains to skilled judges to ensure the public interest is protected in these circumstances. Weak judges can be a threat to the rule of law.

The JSC’s capture by narrow political interests is therefore an issue of grave concern. Retired Supreme Court judge Azhar Cachalia said in August that the JSC “has increasingly abused its power and been captured by political interests” and that he and many other excellent candidates had been discouraged by this from applying for judicial promotion.

The highly politicised, inconsistent and often humiliating treatment of nominees during JSC interviews means preferment to the bench is now regarded by senior legal practitioners as an increasingly less desirable aspiration.

Retired Constitutional Court judge Edwin Cameron has echoed these views. Speaking in July he labelled some members of the JSC “skilled liars, dissemblers, manipulators and propagandists” who had used the commission to “wreck the advancement of conscientious and capable candidates for judicial preferment”.

The highly politicised, inconsistent and often humiliating treatment of nominees during JSC interviews means preferment to the bench is now regarded by senior legal practitioners as an increasingly less desirable aspiration.

Inevitably, the JSC’s machinations have led to a decline in the overall quality of judicial appointments and undermined its institutional efficacy. The commission has been unable to fill judicial vacancies timeously. The current vacancy on the Constitutional Court has been open since 2021. And the JSC was forced to re-advertise vacancies in 2012, 2016, 2022 and in May 2024 after failed April interviews, and now the October interviews have too few applicants.

Far too often JSC interviews have called into question the credibility of proceedings. Between 2011 and 2023 there have been at least five instances in which the JSC has either had its deliberations invalidated by the courts or been forced to concede shortcomings and settled cases against it. That the JSC has so frequently been taken to court and forced to concede its errors under compulsion of the law is a demonstrable failure of judicial leadership. After all, the JSC is chaired by the chief justice.

What is to be done? We suggest the following remedies:

• The quality of commissioners serving on the JSC should be improved. Considering the statutory composition of the JSC, political parties, the president and others who designate commissioners for JSC membership must appoint commissioners who will best serve the national interest, not political or sectional interests.  The president, justice minister and parliament itself should be held accountable for the suitability of the choices they make, as should professional legal bodies that nominate JSC members.
• The JSC’s procedures require reform. In April 2023 the JSC adopted objective, transparent criteria for the selection and appointment of judges, with due regard to the constitutional imperative for the judiciary to broadly reflect SA’s racial and gender composition. These criteria emphasise technical competence, writing skills, critical reasoning, diligence, stamina, industry, work ethic and productivity. However, they must be applied more rigorously and consistently, and the chair of the JSC — the chief justice — should play an effective leadership role in ensuring consistent application happens.
• There must be firmer leadership of the JSC to prevent poor processes and worse decision-making that can be overturned in court. The chief justice has significant power to shape how interviews and deliberations take place and to ensure conformity with the JSC’s own rules, criteria and principles. The other judges who serve on the commission should also provide leadership. This is not a body in which political horse-trading should be encouraged or endorsed. The appointment of judges is too important for that.
• Appointing judges and deciding who has the legal skills, judgment, respect of their peers and work ethic required is not a simple exercise. In fact, it is a most demanding job. The JSC needs better support and researchers who help to prepare commissioners for interviews and deliberations on appointments.
• The composition of the JSC should be revisited to reduce the outsize representation of politicians. The politicians on the commission have all too often engaged in grandstanding, driven narrow partisan agendas and failed to discharge their constitutional obligations. The quality of the judicial appointments process has thus suffered. A constitutional amendment is required that restores the balance to the position that prevailed under the interim constitution, which provided for four MPs to be sent to the JSC, rather than the current 12 — six from the National Assembly and four from the National Council of Provinces, the justice minister as well as the premier of a province when the JSC is appointing a high court judge.
• The judiciary should be properly resourced (IT, safe courthouses, research and administrative support). Constitutional democracy and the rule of law are undermined by a government that underfunds the courts.

With a new, more reform-minded government, a new justice minister and a new chief justice, the prospects for positive change have never been greater. But there is also a new threat. For the first time since 1994 the country has an official opposition that regards constitutional democracy and an independent judiciary with contempt. The MK party, some of its fellow travellers on the opposition benches and factions within other parties do not want to be held accountable by the courts. They want to rip up the constitution.

The rule of law and an independent, respected judiciary is essential to the country’s chances for success — faster growth, more investment, accountable government that delivers, greater prosperity and inclusion. Now is the time to reform the JSC and strengthen the process of judicial appointments. This has to be one of the new government’s top priorities if we are to stop the rot.

• Bernstein is executive director at the Centre for Development & Enterprise (CDE). This article draws on a new CDE report, ‘How to appoint a strong judiciary’, the fourth action document in CDE’s‘Agenda 2024: Priorities For A New Government’series.

This article was published on Business Day