Opacity and Unaccountability at the Judicial Service Commission
The exchange between Advocate Izak Smuts SC and Judge Ray Zondo during the Cape Town October 2010 session of the Judicial Service Commission (JSC) should serve as an overdue wake up call to those who value the proper administration of justice in the new South Africa.Adv Smuts, in his capacity as Bar representative on the JSC, asked Judge Zondo whether he would like to know the scores for and against in respect of his application to be elevated to the Supreme Court of Appeal, observing that the deliberations and voting occur behind the closed doors of the proverbial "smoke filled room" when the JSC is done with the public interviews of candidates for positions in the judiciary. Judge Zondo welcomed the suggestion, provided the Constitution permits this departure from the established practice - it clearly does.
The opaque features of the appointment procedure are troubling. The lack of accountability in the process is cause for greater concern. It is high time both were reconsidered by policy makers, lawyers and the public at large.
The Deputy President of the Supreme Court of Appeal, Judge Louis Harms gave an unequivocal exposition of his stance in his address entitled "Transparency and accountability in the judicial appointment process" at the 12th annual International Judicial Conference in Bucharest, Romania in 2004. After comparing the old regime used in South Africa between 1806 and 1994 with the new, in which the 23 member JSC (including 15 political appointees) has been given the task of selecting candidates, he describes the appointment procedure succinctly, in the following terms which are worthy of a wider audience:
"The procedure followed by the JSC in appointing judges is as follows: an aspirant judge has to be nominated for appointment by whoever is prepared to do so. A committee of the JSC then prepares a shortlist of candidates. They are interviewed (or in some cases interrogated) in a meeting that is open to the public... Then the JSC meets in committee and votes on the candidates. All that follows is confidential and although the Promotion of Access to Information Act applies to the JSC, the principles of natural justice...do not and its proceedings cannot thus be taken on review.
Thus although the nomination and the interview are transparent, the short-listing and the ultimate voting are not. The JSC is also not accountable to anyone because it is faceless and no one knows who was for or against any particular candidate."
The "proceedings" to which the learned judge refers are obviously those relating to the selection process, as we have seen in the infamous case involving the Constitutional Court Justices and Judge President Hlophe, disciplinary proceedings can and have been taken on review.
Turning to the practical effects of the opacity and lack of accountability, he continues:
"There is no doubt that the JSC rejects suitable candidates only because they are white and male. As a result, the Bars are unwilling to nominate anymore because their candidates are so often rejected; and prominent members of the Bar are not prepared to accept a nomination for fear of an unreasoned rejection in favour of a poor candidate. This in my view is a serious abdication of duty. It means that invariably a ‘transformation candidate' will be appointed, even where there is no merit at all, because the alternatives are so mediocre. For the same reason suitable judges are not prepared to be nominated to higher courts. There are those who believe that a crash course creates a judge, and there are those that believe this is a pious hope. Transparency and accountability are matters of degree, judicial independence is not. The degree of transparency and accountability required depends on the culture and history of a country: judicial independence does not."
What then is the culture in SA when it comes to accountability and transparency? Section 1 of the Constitution is a good starting point: it sets out our foundational values. Openness (which is used as a synonym for transparency) and accountability feature among the foundational values of the new SA. In the chapter of the Constitution dealing with the principles and values that apply to the public administration there is once again much emphasis on transparency and accountability. Why then have we tolerated the opacity and unaccountability of the JSC in a constitutional set up which places so much necessary store on transparency and accountability? The explanation is to be found in our history. The courts were used as the instruments for the enforcement of discriminatory apartheid legislation and were manned almost exclusively by white men before 1994. Their legitimacy in the eyes of much of the population was highly questionable. A means had to be found to render the courts acceptable and accessible to all. Putting judges on the Bench with due consideration of factors of race and gender is a constitutional imperative, but the basic requirements remain duly qualified, fit and proper persons.
Because of the opacity and the lack of accountability, the JSC has become somewhat dysfunctional over the years since 1994. It has grafted requirements such as "potential" and "community values" and "symbolism" onto the basics. Patently unsuitable candidates have received the nod, patently suitable ones have not, perhaps because of the wayward criteria in use. Serious consideration needs to be given to getting the JSC to clean up its act. At this stage, litigants in the High Courts are more concerned about the quality of the justice dispensed than about the gender or race of the judges who determine their cases. The proper administration of justice depends upon the expertise and the quality of the characters of the judges, not upon their sex or colour, both of which are irrelevant in a truly non-racial non-sexist society. The sometimes inexplicable choices made by the JSC need to be dealt with in a manner that constructively addresses the need to preserve the independence of the judiciary by the elevation of appropriate candidates to the Bench - we can not as a nation leave this to what Judge Harms calls "pious hope".
Revealing the scores and the reasons for making recommendations and rejecting candidates might be a useful start and could enhance the quality of the choices made. It will also be helpful to rejected candidates to know whether they lost out by a narrow margin as this may encourage them to try again. Litigants may also be interested to know whether new judges squeaked in or were unanimously recommended. The suitability of having so many politicians in the JSC and the presence of a "caucus" among its members could be considered afresh, now that the Bench is no longer dominated by pale males. It may be appropriate to include recently retired judges in the mix, they know the candidates who are legal practitioners better than the politicians and other non-legal members of the JSC and could inform the deliberations with useful insights drawn from their wealth of experience. Civil society and faith based groups could also be given representation on the JSC. The functions of the JSC might also be expanded to cover senior appointments in the National Prosecuting Authority.
It is vital that an appropriate means of creating an open and accountable way of making the right choices when it comes to replenishing the ranks of the judges should be devised. The independence of the judiciary depends upon the elimination of opacity and lack of accountability in all of the JSC's functions. Without an independent judiciary, democracy will perish.
Paul Hoffman SC
18th October, 2010
