JSC report: “System needs an overhaul” – Freedom Under Law on judicial appointments

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Freedom Under Law (FUL) has raised several concerns about the composition, operation and performance of the Judicial Service Commission (JSC). The JSC is the body constitutionally mandated to assist in making judicial appointments and must deal with disputes lodged against judges. FUL’s report titled: A review of the activities of the South African Judicial Service Commission 2009 to 2022, found key deficiencies in the body that has for years been prone to political interference. BizNews correspondent Michael Appel spoke to Calli Solik, lead researcher on the report, to get a better understanding of the systemic issues identified by FUL. The report can be read here. – Michael Appel

Excerpts from interview with Freedom Under Law lead researcher Calli Solik

Calli Solik on the genesis of the Judicial Service Commission

So what the South African system does is: we’ve developed a body called the Judicial Service Commission, and they represent all the different arms of government, as well as legal practitioners and academics. And it’s designed to be an all-inclusive body that, when functioning properly, is is a better way of involving everyone in the appointment of judges.

On the performance of the JSC to date

I think that was one of the things we found in the report is that there seems to be a bit of an imbalance as regards political appointees. And I have highlighted that of the 23 members who sit on the JSC, only eight actually have to have legal training. So there does seem to be a little bit of a disjunct between the people who are selecting judges and the kind of experience and background they have. We’ve also repeatedly seen recent instances of political interference in the interview process that has been quite highly publicised.

On the failure of the JSC to produce annual reports and its lack of transparency

As a researcher this is probably the most telling point for me because when we set about to do what I initially thought would be a relatively simple task of compiling a list of who had served on the commission, a list of who they’d interviewed and where the list of the annual reports was, we realised that this information was just not available. To the extent that it was available, it was stored in kind of disparate sources. Some of it on the Department of Justice website, some of it on the office of the Chief Justice’s website. There’s no central repository for any of that information. And I think the fact that they’ve failed to file annual reports is symptomatic of kind of a twofold problem. The first is either lack of capacity to prepare and publish, or that there is no appetite to comply with the constitutional obligation of openness. I think it’s a combination of those things. We’ve definitely addressed the fact, and the report repeatedly states that there seems to be quite a severe problem of lack of capacity, I think specifically with dealing with complaints [against judges] and making information available.

On 26 nominated candidates withdrawing from JSC interviews

I think it’s a huge problem. I think that that’s the primary issue at the moment with the way that the interviews are conducted. People just aren’t willing to put themselves through what can sometimes be quite a huge public embarrassment. I mean, we’ve seen repeatedly candidates being faced with some adverse comments or issues that they’ve had no notice of or no warning about and that’s being pressed or completely unfounded allegations that seem to be repeated to them. We have detailed those instances within the report, but I think people just aren’t willing to do it. And if we know that there are at least 26 instances of people withdrawing after being nominated and being selected for an interview, we can assume that the real number of people refusing to even put their names forward for consideration for an interview is even higher.

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