The Judicial Service Commission is a body specially constituted by the South African Constitution to recommend persons for appointment to the judiciary of South Africa.
History In apartheid South Africa, judges were appointed by the President, usually on the direction of the Minister of Justice, and behind closed doors. During the constitutional negotiations, it was decided that the President's power should be moderated by a special body relatively insulated from partisan interests. It was to be composed of a number of politicians, from both the ruling party and the opposition, and non-politicians, and would conduct public interviews. The Judicial Service Commission (JSC) was therefore created by the Interim Constitution. The JSC is now regulated by section 178 of the final Constitution (and by the Judicial Service Commission Act 9 of 1994).
Composition In terms of section 178(1) of the Constitution, the JSC is usually composed of 25 members. This membership is divided more or less evenly between politicians and non-politicians. These are: the Chief Justice of South Africa, who presides over its meetings; the President of the Supreme Court of Appeal; one Judge President designated by the Judges President; the Minister of Justice and Constitutional Development, or his/her designated alternate; two practicing advocates nominated from within the advocates' profession; two practicing attorneys nominated from within the attorneys' profession; one teacher of law, designated by the teachers of law at South African universities; six members from the National Assembly, including three from opposition parties; four members from the National Council of Provinces; and four more persons designated by the President after consulting the leaders of all the parties in the National Assembly. When the JSC considers the appointment of judges to a division of the High Court, its Judge President, and the Premier of the province in which it is located, must also be present. When the matter before the Commission does not concern the appointment of a judge, the members from the National Assembly and the National Council of Provinces are excluded.
Judicial appointments The JSC's primary function is to select South Africa's judges. Though the President makes the appointments, the JSC has a crucial screening function. In the case of judges of the High Court and Supreme Court of Appeal, the President's role is purely formal; they must confirm the candidates chosen by the JSC. But in the case of justices of the Constitutional Court, the country's highest, the President has a discretion: the JSC provides a shortlist of four candidates, from which the President picks one. In the appointment of the Chief Justice and Deputy Chief Justice, finally, the JSC's power is most attenuated: the President makes the appointments "after consulting" the JSC and opposition parties, whose opinions they may disregard.
1994–1999: Mandela administration The first Constitutional Court The JSC's first task after its establishment was to determine the members of the newly formed Constitutional Court. The Court's President, Arthur Chaskalson, had already been appointed by President Mandela. Four other judges – Laurie Ackermann, Richard Goldstone, Tholie Madala and Ismail Mahomed – were then appointed by Mandela, in consultation with Chaskalson, from the ranks of the existing Supreme Court. The JSC's role was to compile the shortlist from which the remaining six members of the Court would be picked.
At that stage the commissioners included many of the country's most respected lawyers, like Chaskalson, Mahomed, George Bizos, Wim Trengove and Etienne Mureinik, to whom the politicians on the JSC usually deferred. And the Mandela administration appointed several opposition politicians – more than the Constitution requires – to act as commissioners. According to one commentator, "there was a seeming lack of cynicism reflective of the heady early days of democracy".
Nevertheless, interviews were robust. Most famously, Albie Sachs was questioned about his role in a report downplaying the ANC's indefinite detention and solitary confinement of Umkhonto we Sizwe commander Thami Zulu. One commissioner told Sachs his answers were "appalling" and criticised him for "sell[ing] his soul" by signing onto the report. Sachs felt the criticism was unfair given his central role in ending torture in ANC camps.
Sachs was ultimately appointed, though one prominent lawyer later said that if Sachs's interview had been more widely publicised he "could not possibly have been on the Court". Many were also disappointed that John Dugard was overlooked. Nevertheless, the bench that was ultimately appointed was widely praised, and their tenure thought to mark the Court's golden age. The unorthodox appointment of Kate O'Regan, a legal academic aged only 37, proved a masterstroke, for she became, in the view of many, one of South Africa's greatest ever judges. Pius Langa, whom Mandela appointed as Deputy President of the Court in 1998, would also later become one of South Africa's most celebrated judges. The other three JSC appointees were John Didcott, a famously liberal High Court judge; Johann Kriegler, also an outlier on the apartheid bench; and Yvonne Mokgoro, a legal academic.
In February 1998, Zak Yacoob was appointed to the Constitutional Court to replace the late Ismail Mahomed. Yacoob, blind since infancy, had been a prominent anti-apartheid lawyer, member of the Natal Indian Congress and ANC, and advisor to the drafters of the South African Constitution.
SARFU case Many judges of the Court had, like Yacoob, been ANC members, or had at least worked with the ANC in the struggle against apartheid. This became contentious in May 1999, when the South African Rugby Football Union's legal challenge to President Mandela's power to appoint a commission of inquiry into the sport reached the Constitutional Court on appeal. SARFU's acrimonious, racially charged challenge was led by its head, the "arrogant" and "boorish" Louis Luyt, who had locked horns with the ANC in the past. SARFU sought the recusal of Chaskalson, Langa, Sachs and Yacoob on the basis that they "had extremely close ties" with Mandela's ANC and might therefore be biased. The likely effect of the recusal would have been that the "astonishing" decision of High Court judge Willem de Villers – who had subpoenaed Mandela and "all but called him a liar", and ultimately found in SARFU's favour – would stand. But the Constitutional Court unanimously dismissed the recusal application, prompting Luyt to withdraw from the appeal in protest, saying he had lost confidence in the judiciary. The Court later found against SARFU on the merits.
Controversial right-wing commentator R.W. Johnson later used the saga to argue that the Court was illegitimate and aligned with the ANC government. To most observers, however, Luyt was the villain of the piece (and Johnson's book full of "unsubstantiated gossip"). He was soon ousted as head of SARFU, whose new leaders apologised to Mandela for taking him to court. The Court's judgment on the recusal application is still widely cited by South African and foreign courts.
Ngcobo appointment The first major controversy about political interference in judicial appointments occurred with Sandile Ngcobo's appointment to the Constitutional Court in 1999 to replace the late John Didcott. The JSC had recommended the appointment of Edwin Cameron, considered "the greatest legal mind of his generation", but Ngcobo was ultimately preferred due to the late intercession of Thabo Mbeki, then Deputy President, who felt the appointee should be black. The Guardian reported that South Africa's legal fraternity "launched a vigorous attack" on Mbeki when news of his intervention broke. One advocate lamented that, "in this instance, the importance of race trumped the importance of cutting edge jurisprudence". Cameron said, however, there is "no doubt" the decision to appoint Ngcobo was correct.
1999–2008: Mbeki administration Shortly after this incident, Mbeki became the country's President. His administration preserved the high number of commissioners from the opposition, but is thought to have prioritised ANC policy, and candidates' race, in the making of judicial appointments.
This has proved controversial. Some commentators say the strongest candidates for appointment and promotion were regularly overlooked. For example, the "obscure" Bess Nkabinde was appointed to the Constitutional Court in 2008 ahead of "the obvious candidate", esteemed legal academic Cora Hoexter.
By the end of Mbeki's tenure, the JSC faced a dearth of candidates for judicial appointment, apparently because few were willing to subject themselves to its flawed selection process.
2008–2009: Motlanthe administration In December 2007, at the Polokwane conference, Mbeki was ousted as ANC President by Jacob Zuma. The following year, KwaZulu-Natal High Court judge Chris Nicholson ruled that Mbeki had sought Zuma's prosecution for corruption for political reasons. This judgement was, however, later overturned by the Appeal Court. The ANC recalled Mbeki, who officially resigned as President on 24 September 2008. Kgalema Motlanthe became the country's "caretaker president" pending the 2009 general elections, in which Zuma was elected.
Motlanthe's most significant act in relation to the judiciary was to appoint Edwin Cameron (whose appointment in 1999 Mbeki had prevented) to the Constitutional Court with effect from 1 January 2009. This appointment was widely praised, both for Cameron's legal ability and because he is openly gay and HIV-positive. Some suggested that Cameron would not have been appointed by either Mbeki, of whose AIDS denialism Cameron had been a fierce critic, or Zuma, likely to be discomfited by white, gay, liberal-minded judges. Cameron was also appointed despite a lengthy submission to the JSC by advocate Vuyani Ngalwana arguing that a white man should not be appointed.
2009–: Zuma administration On 9 May 2009, Zuma became President of South Africa, and significant changes to the JSC's composition soon followed. ANC "heavyweights" Jeff Radebe and Ngoako Ramatlhodi, both controversial figures and key Zuma allies, joined the Commission as the new Minister of Justice and a senior ANC MP respectively. Fatima Chohan, then an ANC parliamentarian, also joined. The new administration abandoned Mandela and Mbeki's convention of appointing supernumerary opposition members of the NCOP, and packed the Commission with four ANC representatives. Finally, Zuma's four presidential appointees, who replaced founding commissioner George Bizos among others, were Dumisa Ntsebeza SC, Ishmael Semenya SC, Vas Soni SC and Andiswa Ndoni. Legal academic Pierre de Vos described Ntsebeza and Ndoni as "racial nationalists", noted controversies hanging over Semenya and Soni, and said the appointments were "bad news". Radebe, Ramatlhodi, Chohan, Ntsebeza and Semenya soon became vocal and influential commissioners, whose conduct soon led to fears of a "partisan takeover" of the JSC.
2009 Constitutional Court appointments In October 2009, soon after becoming President, it fell to Zuma to appoint four judges to the Constitutional Court to replace the retiring Pius Langa, Yvonne Mokgoro, Kate O'Regan and Albie Sachs, the last remaining members of the Court appointed upon its creation in 1994. All four were "stalwarts" of the Court, "among its most industrious, as well as progressive, members" – and regarded with "intense suspicion" by some Zuma supporters. Some suspected Zuma would use his powers of appointment to "rein in the courts", appointing more pliant judges in their stead.