That the seats on our highest court sit empty because there are too few suitable candidates to fill them is a crisis. It signals that the branch of government tasked with upholding the rule of law and holding the executive to account is getting weaker.

In this series for Daily Maverick, the executive director of the Centre for Development and Enterprise, Ann Bernstein, makes the case for a policy agenda that is substantially different from what we have seen over the past 15 years.

It is drawn from Agenda 2024: Priorities for South Africa’s New Government, which is based on CDE’s extensive policy work and recent collaboration with experts, business leaders, former public servants and others across our society. The project sets out to answer 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?

The fifth article in the series makes the case for a strengthened judiciary and reform of the Judicial Service Commission (JSE).

In October 2022 there was a vacancy on the Constitutional Court, but the JSC – the constitutional body tasked with selecting judges – couldn’t conduct any interviews because of an insufficient number of candidates. Unfortunately, this was not an isolated incident.

This year, with candidates for the Constitutional Court due to be interviewed next month, too few people have again applied for the vacancy. The Constitution requires that at least four candidates be presented for the President to make an appointment to one vacancy, but only three nominations have been received.

This is the latest indicator that all is not well with the processes through which our judges are appointed. Vacancies for the Constitutional Court had to be readvertised in 2012, 2016 and 2022. The current vacancy on the Constitutional Court has been open since 2021.

That the seats on our highest court sit empty because there are too few suitable candidates to fill them is a crisis. It signals that the branch of government tasked with upholding the rule of law and holding the executive to account is getting weaker.

While the caseload of the Constitutional Court has grown, the rate at which it issues judgments has slowed down alarmingly. Between 2010 and 2021, the time the court took to hand down judgments effectively doubled. This plays into the hands of powerful political forces (including factions within the ruling party and the new official Opposition) who don’t believe in the Constitution and certainly don’t like the idea of being held accountable by an independent judiciary.

How did we get here?

One reason is that meritorious candidates simply don’t make themselves available because of the unseemly spectacle that JSC interview processes have too often become, calling 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 decisions invalidated by the courts, or been forced to concede shortcomings and settled cases against it: they have been accused of “irrational deliberations” or intense personal attacks on some judges, among other things.

At the root of the JSC’s shortcomings is its composition, which is skewed in favour of political representation. Those who can be expected to have intimate knowledge of the qualities required of a judge are vastly outnumbered by those appointed by virtue of political office.

The politicians on the JSC have often engaged in grandstanding, driven narrow partisan agendas and failed to discharge their constitutional obligations.

Recently retired Supreme Court of Appeal judge Azhar Cachalia described personally choosing not to return for further interviews after being subjected to “the appalling behaviour of some commissioners” at the JSC as far back as 2009.

In the April 2021 JSC interviews, a number of judges, including Judge Dhaya Pillay, were targeted with personal attacks. Although the threat of court action forced the JSC to re-run the interviews, Pillay chose not to return.

Retired Constitutional Court judge Edwin Cameron has criticised the JSC, speaking in July 2024 about some lawyers and advocates being “skilled liars, dissemblers, manipulators and propagandists” who have “used the Judicial Service Commission to wreck the advancement of conscientious and capable candidates for judicial preferment”.

In a properly functioning system, there should be an abundance of talented candidates, with the leading lawyers from around the country available for consideration by the JSC. Appointment to the apex court should be the highest honour of a legal career. That it is not so considered is resounding testimony of the JSC’s failure.

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.

A country grappling with elite looting of the state and industrial-scale corruption needs judges of experience and 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

Parliament and the Presidency must appoint JSC commissioners who will best serve the national interest and not any other political or sectional interest. JSC members must evaluate candidates for judicial appointment on objective grounds. The criteria developed for the selection of judges must be applied fairly and consistently.

In chairing the JSC, the Chief Justice needs to exercise leadership to ensure candidates are interviewed properly, and that the focus of discussion is on the relative merits of each candidate.

It is also important to increase the influence of judges in the evaluation of candidates to ensure that appointments are not politicised and that JSC members have the requisite expertise.

As retired Supreme Court of Appeal judge Robert Nugent said in a CDE webinar this week: “Appointing a strong judiciary is, in fact, very simple: make sure that the people appointing them, are the right people to do that.”

Geoff Budlender SC said in the same seminar: “Members of the JSC who come from Parliament, for the most part, often don’t have the practical knowledge and the experience of how the courts work, what is required of judges and how judges do their job.”

Consideration should therefore be given to altering the composition of the JSC to restore the balance that prevailed under the interim constitution: four MPs were sent to the JSC, rather than the current 12 people who hold political office (six from the National Assembly, four from the National Council of Provinces, the minister of justice and the premier of the province concerned in the case of an appointment to the High Court).

In South Africa we need judges who are effective, who inspire confidence and reflect the racial and gender composition of the country. There is no reason why we cannot achieve all of these goals simultaneously, so long as the judiciary attracts the best legal talent from the largest possible pool of candidates.

The country cannot afford to continue with a selection process that repels our best legal talent and sometimes makes perverse, politically motivated recommendations. Reforming the JSC to ensure a strengthened judiciary needs to be a top national priority.

Despite the fundamental role that the judiciary plays in the economy, key sections of civil society and business are too complacent about the state of the judiciary. This, in our view, is a grave error.

The Government of National Unity (GNU), the new chief justice, business and the country can no longer take the excellence and independence of our judiciary for granted.

The chief justice must lead in chairing the JSC, while business and civil society should up the pressure for speedy reform in how the JSC is composed and how it operates.

Strengthening the judiciary must become a top priority for action by the GNU. DM

Ann Bernstein is executive director of CDE. This article draws on a new CDE report, ‘How to appoint a strong judiciary’, which is the fourth action document in CDE’s AGENDA 2024: Priorities for South Africa’s new government series.

This article was published on Daily Maverick