Nugent calls for reform in judicial appointments, condemns ‘political caucusing’ at JSC

Retired judge Robert Nugent has told a panel of legal experts that there should be no place for “political caucusing” at the Judicial Service Commission (JSC).  

If South Africa wanted a strong judiciary, priority should be given to ensure that those responsible for appointing judges were “the right people to do so”, he said on Tuesday during a webinar hosted by the Centre for Development and Enterprise (CDE).

The centre released its fourth report in a series on priorities for South Africa’s new government, on how the judiciary could be strengthened.  

Selecting judges to serve in South Africa’s courts and to investigate complaints against judges is the realm of the JSC, a body considered by many legal practitioners as being politically driven and inexperienced for the gravity of its task, meaning that some of the country’s finest legal minds are overlooked for positions.

In 2021, the Council for the Advancement of the South African Constitution forced a rerun of JSC interviews for constitutional court vacancies after the questioning of candidates took a political trajectory. 

Economic Freedom Fighters leader Julius Malema at the time questioned candidates about rulings they made that were not in favour of his party. Those interviews also descended into personal attacks on some candidates.

In 2022, during interviews for the chief justice position, Gauteng’s judge president, Dunstan Mlambo, was asked by Malema and advocate Dali Mpofu about “rumours” of sexual harassment. Mlambo responded to the unsubstantiated allegations, denying them, and his responses were expunged during the same sitting. No formal complaint has ever been made against the judge regarding sexual harassment.

The 23-person commission comprises National Assembly members, members of the National Council of Provinces (NCOP), members from the law fraternity and four members designated by the president. The chief justice or deputy chief justice presides over the commission.   

“I think that there is a strong case to be made for adjusting the composition of the JSC. At the moment, there are 11 political appointments, and then there are also four to be made by the president,” Nugent said on Tuesday.

“It might have been that 30 years ago that was an appropriate composition, but we’ve moved on since, and it is by no means an appropriate composition.”

Those who sat on the JSC needed to be qualified to do so, he said. “They must be people of integrity who will do a proper inquiry into the fitness of a judge, or of a person to be a judge.”

Members of the JSC being appointed by the National Assembly led to a situation where “any person nominated by any political party is appointed as a matter of course”, Nugent added.

“The National Assembly has its own obligation to consider people who are nominated by the political parties, to consider whether they are actually appropriately qualified to be appointed.

“Once appointed, the people who are appointed, politicians who are appointed to the judicial service commission, [should not be there] to represent their parties. They are there to make decisions in the national interest, irrespective of the views of their political parties.

“There is no place for them to be caucusing politically in their decision-making. There is no place for them to be taking instructions from their political parties as to what decisions they should make. They ought to be making their decisions independently, not as politicians, but as representatives of the country.”

Prior to Nugent, the CDE’s Ann Bernstein said weak judges could be a threat to the rule of law, and that the country’s judiciary was undermined by an executive that underfunded the courts.

“A modern economy needs skilled judges. Our Constitution is a complex document. Our economy is sophisticated, involving contestation over complicated contracts, rights and responsibilities, both locally and internationally,” Bernstein said.

“Learned and skilled judges are needed to make judgments on these complex rules and relationships. We are a country grappling with state capture, with industrial scale corruption, and we need judges of experience and considerable legal expertise.”

In this context, the process of selecting judges was extremely important, she said. “Judges, who could fairly be assumed to have the most knowledge of what is required for judicial office, are vastly outnumbered [on the JSC].”

Newly appointed Chief Justice Mandisa Maya would need to lead in reforming the commission and strengthening the judiciary if attacks on the Constitution were to be withstood, said Bernstein.

Also on the panel was Mbekezeli Benjamin, a research and advocacy officer at Judges Matter. Referring to the 2021 JSC interview debacle, he said that then chief justice Mogoeng Mogoeng had failed in his leadership role.

When former chief justice Raymond Zondo took up the post after Mogoeng, he showed leadership when, prior to an October 2021 JSC sitting, he called the commissioners to a workshop and “thrashed out” how the commissioners behaved and how they should have behaved. There was a “slight improvement” after that workshop, he said.

As a constitutional body, the JSC should have proper systems, rules and procedures in place, said Benjamin, instead of “depending on whims”.

He said that for the past three years, Judges Matter had been advocating for the JSC to have written criteria that would guide how its interviews were conducted.

The commission should have a code of conduct for commissioners, he said, which would regulate who was appointed, and give guidance on the bodies that constitute the JSC.

The code of conduct should set the standards for how individuals behave as commissioners, “and if they don’t meet those standards, there should be an enforcement mechanism in the form of the power of recall”, he said.

The JSC should be able to write to the National Assembly to say that an assembly member had not behaved according to the standards that had been set, and the National Assembly should recall the commissioner.  

To the JSC’s credit, he said, it had adopted written criteria that spoke to the qualities needed to be a judge — practical experience in courts, a good work ethic and commitment to integrity, among others.

“But those criteria are not self-executing, of course, and what we are now calling for is activity that should be enforced consistently in all the interviews, and even before [the interviews],” said Benjamin. The JSC should “start playing a strategic HR function”, he said, for which Judges Matter had been advocating.

Geoff Budlender SC spoke about the JSC “simply not having the experience, skills and competence to work out who will be able to do a good job and who won’t be able to do a good job”.

More judges needed to be appointed to the JSC, he said, because they spent every day observing and assessing the performances of lawyers.

“It seems to be absurd that we should think that [judges] could play only a small role in identifying who would make the most effective judges.”

There also needed to be more pressure applied to the bodies — the president, National Assembly, professional bodies and the NCOP — who nominate members of the JSC “to ensure that they do their job properly”.

“Appointing members of the JSC is not a matter of one for my chair and one for yours, one for me, and one for you and three for the other person. It’s a very, very serious task, and we need to look for ways in which we can discipline and structure the process of the appointment of the members of the JSC, because if you have a weak JSC, you’re going to have a weak judiciary,” he said.

The role of the chairperson of the JSC also had to come under scrutiny, said Budlender, “and I’m afraid that is where we have fallen very far short in many instances over the past 30 years”.

Chairing the JSC had “become a job of just directing the traffic … when it is much more fundamental than that”, he said.

“It’s the job of the chairperson to lead, to ensure that a properly focused and properly disciplined interview takes place. It’s the job of the chairperson to prevent irrelevant and improper questions being asked, to prevent candidates being ambushed.

“And it’s also the job of the chairperson to ensure that the candidates are treated with dignity and respect. It’s not a matter of showing deference to them. 

“They’re all asking for a job. They’re applying for a job. They should be willing to stand up to firm and robust questioning. But insults, political insults and grandstanding directed at candidates who are unable to answer for themselves because they are candidates, really ought not to be tolerated. We’ve had too much of that.”