The Centre for Development and Enterprise (CDE) today called on the new Chief Justice, Mandisa Maya, to play an active role in reforming the Judicial Service Commission (JSC) so that the country’s best legal talent can be selected as judges.

Speaking at the launch of a new report in CDE’s Agenda 2024 series – ACTION FOUR: How to Appoint a Strong Judiciary – CDE executive director Ann Bernstein set out the case for a strengthened judiciary and reform of the JSC.

“The judiciary in democratic South Africa has maintained its independence, but there are warning signs of trouble brewing now and into the future in terms of the quality of judicial appointments. We should not take the judiciary – this pillar of our democracy – for granted,” said Bernstein.

“Powerful political forces in parliament, elite looters of the state, and other criminals do not want a strong independent judiciary. There are factions within the ruling party and other parties who don’t believe in the Constitution or the notion of being held accountable by the judiciary. The official opposition party has designated to the JSC a disgraced former judge who was impeached for attempting to influence judges to rule in favour of former President Zuma,” she added.

In this context, the process of selecting judges is very important.

Between 2011 and 2023, there have been at least five instances in which the JSC has either had its decisions invalidated by the courts, or conceded its shortcomings and settled cases against it. The JSC’s decisions have been successfully challenged in respect of the misconduct of judges Hlophe and Motata, and its process to fill vacancies in 2011, 2021 and 2023.

“That the JSC has been reviewed in the courts and forced to concede its errors under compulsion of law undermines its legitimacy and is a demonstrable failure of judicial leadership,” said Bernstein.

The best lawyers in the country are not making themselves available for full time positions in the judiciary mainly as a result of how the JSC has conducted interviews and made decisions over the past 15 years. The JSC has been forced to re-advertise vacancies in 2012, 2016, 2022 and again in 2024. The interviews planned for October this year did not draw enough applications for the vacancy on the Constitutional Court.

As a result, the quality of judges being appointed has declined: the selection pool does not represent the country’s best lawyers.

The unpredictable, inconsistent and sometimes abusive treatment of nominees during JSC proceedings has deterred many excellent would-be judges from putting themselves forward for consideration. The results are increasingly clear: trials are delayed – in some cases for decades; judgements are postponed for months and in some cases for years.

Criminals use their ill-gotten gains to hire large, smart legal teams and often out gun public prosecutors with limited resources. SA needs good judges to ensure the public interest is protected in these circumstances. Weak judges can be a threat to the rule of law.

“Our economy needs skilled, talented judges to deal with the complexity of a sophisticated economy operating within a democratic constitution. A country grappling with state capture and industrial scale corruption needs judges of experience and considerable legal expertise,” she said.

“A new government, a new Minister of Justice and Constitutional Development and a new Chief Justice starting her tenure this week create an opportunity for reform. CDE’s report sets out practical recommendations on how to strengthen the judiciary,” she added.

CDE recommends a number of catalytic actions required to strengthen the country’s judiciary, including practical recommendations for Chief Justice Maya in her role chairing the JSC:

• Parliament, the NCOP and the Presidency must appoint JSC commissioners who will best serve the national interest and not any other political or sectional interest. Each of these bodies should be held accountable for the suitability of the choices they make, as should the professional legal bodies who also nominate JSC candidates.
• JSC members must evaluate candidates for judicial appointment on objective grounds. The relatively new JSC criteria developed for the interviewing and selection of judges must be applied fairly and consistently, focusing on applicants’ legal track record, respect by their peers, work efficiency and judgement.
• In chairing the JSC, the new Chief Justice needs to provide more effective leadership than has hitherto been the case. Leadership is required in how interviews are conducted, in the JSC deliberations on who to propose to the President for appointment and in how judges are disciplined.
• The composition of the JSC is asymmetrically skewed in favour of political representation and should be adjusted to increase the influence of judges in the evaluation of candidates. This will require a constitutional amendment that restores the balance to the position that prevailed under the interim Constitution, in which four Members of Parliament were sent to the JSC, rather than the current twelve. Although constitutional changes can take time, there are other constitutional proposals concerning the functioning of the Constitutional Court that are urgent and under consideration. This may afford a timely opportunity to change the composition of the JSC.
• Appointing judges is not an easy task. Research support available to the JSC should be increased.
• The promise of a constitutional democracy with strong rule of law and an independent judiciary is undermined by an executive that underfunds the courts. The judiciary needs to be resourced properly with safe, well maintained courts, excellent IT and other functional support.

“Key sections of civil society and business are too complacent about the state of the judiciary. This is a grave error. A World Bank study using country-level data has shown conclusively that countries with more effective judiciaries have higher levels of economic growth and business formation,” said Bernstein.

“In the last thirty years, SA has made real progress transforming our judiciary. Now, we face a new threat. For the first time since we became a democracy, the official opposition wants to tear down our Constitution. A strengthened judiciary is essential to preserve the rule of law and our constitutional democracy,” she added.

Strengthening the judiciary should be one of the priorities for the GNU. It should also be one of the priorities for organised business and business leaders in their discussions and partnership with the President.

The threats to the quality and efficacy of our judiciary are of utmost national concern. Maintaining an excellent judiciary and court system matter for all of our future prosperity.

“The GNU, the Minister of Justice and Constitutional Development and the new Chief Justice have an essential role to play in strengthening our judiciary and – with it – the foundations of our constitutional democracy,” said Bernstein.

For media enquiries and interview requests, please contact Refiloe Benjamin: media@cde.org.za | 011 482 5140.

ABOUT AGENDA 2024: PRIORITIES FOR SOUTH AFRICA’s NEW GOVERNMENT

AGENDA 2024, based on CDE’s extensive policy work and recent consultations with experts, business leaders, former public servants and academics, sets out to answer what is by far the most important question facing South Africa: what can a new government do to get the country back on track after 15 years of stagnation and decline?

CDE’S AGENDA 2024 identifies five urgent priority areas that the new government needs to focus on: fixing the state; driving growth and development by freeing up markets and competition; building a new approach to mass inclusion; tackling the fiscal crisis; and strengthening the rule of law.

Over the coming weeks and months, CDE will be releasing a series of reports on the priority areas set out above. Previous reports in the series can be accessed here.

ABOUT THE CENTRE FOR DEVELOPMENT AND ENTERPRISE

CDE is an independent policy research and advocacy organisation. It is South Africa’s leading development think tank, focusing on critical development issues and their relationship to economic growth and democratic consolidation. Through examining South African realities and international experience, coupled with high-level forums, workshops and roundtables, CDE formulates practical policy proposals outlining ways in which South Africa can tackle major social and economic challenges.