The Appointment of Judges: Reflections on the Performance of the South African Judicial Service Commission

Abstract

South Africa’s Constitution provides multitudinous examples of clear breaks from past governance structures and practices. Regarding the judiciary, one of many significant changes has been in how judges are appointed. Prior to the onset of constitutional democracy, judges were appointed by the executive, with consultation with the senior judiciary but little or no scope for broader input from any other stakeholders. The Constitution established the Judicial Service Commission (JSC), one of the major functions of which is to recommend the appointment of judges. The JSC was intended to mark a decisive break with the previous appointment system, by creating a broad-based structure that includes politicians, lawyers and judges. The JSC interviews prospective candidates for judicial office in public and provides the opportunity for other stakeholders to engage in the process. This article assesses the performance of the JSC over the first 25 years of South Africa’s constitutional democracy. Several shortcomings will be discussed, including the failure of the commission to develop and apply clear and consistent criteria, challenges with implementing demographic transformation of the judiciary, managing the role of politicians and politics in the judicial appointment process, and an apparent aversion to appointing independently-minded judges, informed at least in part by a restrictive understanding of the principle of the separation of powers.