Judicial selection in South Africa

The Judicial Services Commission (JSC) is currently in the process of filling 30 vacancies around the country. In the USA a Supreme Court position has just fallen open with Justice John Paul Stevens retiring. It is quite damning that people reading South African newspapers will probably hear as much, if not more, about the US selection process than they will about the South African process. Granted, in the USA Obama will be appointing a Supreme Court judge while here there are no Constitutional Court judges being appointed. However, I would wager that the coverage we get on Stevens will still surpass the coverage we got on the appointment process last year of a number of seats on the Constitutional Court. In light of this I thought I would do a very short post on how judicial selection happens here in South Africa.

The Constitution sets out the basic framework by which judges are appointed in South Africa. The Constitution gives both procedural requirements and substantive considerations for the appointment of judges.

The procedure to follow when appointing judges varies according to what vacancy is being filled. If the posts of Chief Justice and Deputy Chief Justice (who head the Constitutional Court) are being filled then the President must consult with the JSC and leaders of the parties represented in the National Assembly. This procedure was brought into dispute last year when President Zuma intimated that he was going to appoint Justice Sandile Ngcobo without first consulting heads of the parties in the National Assembly.

If the posts of President and Deputy President of the Supreme Court of Appeal are being filled then the President need only consult with the JSC.

The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

1. The JSC must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President. 
2. The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made. 
3. The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.

The President must appoint the judges of all other courts on the advice of the Judicial Service Commission.

Some important points about this procedure: Although the President is making the appointments his discretion is very circumscribed by the obligation to consult with the JSC and use nominees made by the JSC. This is in contrast with the USA where the President often introduces a candidate and then has to convince the legislature to pass the nomination.

This then begs the question as to how the JSC reaches its own shortlist that it hands over to the President. I won’t go into detail here (since frankly I am not entirely sure) but suffice to say the following people are members of the JSC: the Chief Justice, President of the SCA, one Judge President of the various High Courts, the Minister of Justice, two practising advocates to represent the profession, two practising attorneys, one teacher of law, six persons from the National Assembly, four persons from the National Council of Provinces, four nominees of the President and when considering High Court matters, the Judge President of that High Court and the Premier of that province.

So, the JSC is composed of a high percentage of politicians (many of which will be pushing an agenda very similar to the President’s agenda). But it also has a number of members that will be semi-independent of that political influence like the members of the judiciary and the profession. I am told that the opposition politicians that sit on the JSC are often some of the most vocal (De Lille from the ID, Van der Merwe from the IFP and Schmidt from the DA) and active during the questioning which suggests that they may play a larger role than expected in the JSC’s final decision. How the JSC arrives at its final decision is still slightly murky.

As mentioned above, the JSC is currently interviewing people to fill 30 vacant positions at various courts around South Africa. It will then recommend names to the President who will then appoint those people.

What the procedure does not tell us is what sort of person should be appointed to the bench. Here the Constitution (correctly) gives very little guidance. It merely stipulates that such a person must be appropriately qualified and for Con Court positions be a South African citizen (s 174(1) of the Constitution). The JSC must also consider the need for the judiciary to reflect the racial and gender composition of South Africa (s 174(2) of the Constitution).

However, besides these constraints the Constitution doesn’t say whether the people should be executive minded, liberal, conservative, a positivist, a Dworkinian etc. There is an unfortunate lack of discourse in South Africa around what type of people should be appointed as judges. The Democratic Governance and Rights Unit has released a good paper outlining their vision of what judges should look likethat you can find at this link (pdf). But besides this and the very occasional op-ed in a paper it doesn’t get discussed. I will put up my own thoughts in the future on what a good judge in South Africa would look like and try and harass friends into doing guests posts on it. Till then I would appreciate hearing your thoughts.



Dumisa Ntsebeza is a Presidential appointee but also an advocate. He was in the papers today because of his (entirely correct) questioning about the appropriateness of appointing white males to the bench in the Eastern Cape.

Some very controversial judgments

The Courts have been busy recently releasing some controversial judgments:

The Labour Court has ruled that the failure to promote a white female officer in the police force was discriminatory. More consideration needed to be given to her rights to equality and dignity and there needed to be consideration of her personal work history and circumstances. Find the judgment here (pdf). This promises to create quite a stir in the media in the next few days and I will try and get someone with labour law knowledge to write a post.

The SCA has ruled that Robert McBride was defamed by The Citizen newspaper who called him a murderer. The SCA reasoned that since McBride had been granted amnesty for the crimes concerned he was no longer a murderer. See the judgment here (pdf).

I find this latter judgment quite troubling for a few reasons. If someone gets amnesty it doesn't mean that retroactively they did not kill someone illegally. To that extent the person is surely a murderer. Even if legally you're no longer a murder, in common parlance it seems that the person is still a murderer albeit an excused one.

The SCA jumps this linguistic hurdle by arguing that a purposive reading of the Promotion of National Unity and Reconciliation Act 34 of 1995 (PNURA) shows that amnesty should also remove the label of being a murderer so the excused person can reintegrate into society. Now there may be substantial benefits to integrating someone who has been granted amnesty back into society. However, it seems very dubious that we should limit the right to freedom of expression of the media in order to give effect to something that has not been expressly stated in a statute. To make this more clear, the PNURA does not expressly state that people who committed crimes are no longer to be labeled murders. The SCA are reading this in order to give effect to promoting reconciliation. Purposive reasoning is an important part of legal reasoning but it shouldn't be used to limit rights particularly rights that are so foundational to a democratic order.