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ABSTRACT
The Judicial Service Commission (JSC) in South Africa was established in response to a pre-democratic era appointment system rich in patronage, opaqueness, and invariably, inequality. The use of judicial appointment bodies has been recommended by the Commonwealth Latimer House Principles, as a method of preserving judicial independence. However, not much research has been conducted into whether there is an absence of patronage and power dynamics when judicial appointment bodies replace executive type of appointments. This paper suggests that the introduction of appointment bodies does not eradicate privilege and power dynamics as some might believe. Rather, it creates a different type of dynamic that can be harmful for women.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 Adopted the Heads of State of Commonwealth countries in 2002.
2 The outcome of an international research project which brought together scholars from Canada, Kenya, Malaysia, Nigeria, South Africa and the UK.
3 As per legislation, the term black refers to African, Coloured and Indians.
4 Statistics provided by the Department of Justice and Constitutional Development, on file with the author.
5 Exceptions to this are the appointment of the Chief Justice, Deputy Chief Justice, President and Deputy President of the Supreme Court of Appeal.
6 This refers to the High Courts, Specialist Courts, Supreme Court of Appeal and the Constitutional Court.
7 JSC Act, 1994 (Act No. 9 of 1994): Procedure of Commission, Government Gazette No. 7616 Volume 453, 27 March 2003 No. 24596.
8 The NCOP is the lower House of Parliament and the representatives are all from the ruling party.
9 A premier is the political leader of a designated province.
10 Views from a JSC member, a sitting Judge, a retired judge and a senior advocate.
11 Views from a politician, a journalist, and two sitting judges.
12 Southern African Litigation Centre v Minister of Justice and Others at http://www.politicsweb.co.za/documents/albashir-salc-vs-the-govt-high-court-judgment.
13 Interview with legal professional V, 12 October 2016.
14 For the Constitutional Court the JSC interviewed Justices Leona Theron, Zukisa Tshiqui, Nonkonsi Mthlantla and Judge Dhaya Pillay.
15 Interview with a journalist, 6 August 2017.
16 Judge of the Northern Cape.
17 See National Director of Public Prosecutions v Scholtz and Others (2027/2012, KS20/2013) [2016] ZANCHC 37 at http://www.saflii.org/za/cases/ZANCHC/2016/37.html.
18 Interview round of 3–7 April, Office of the Chief Justice in Noordwyk, Midrand.
19 There was an allegation that then Judge President Frans Kgomo, had influenced her decision.
20 Interview with a Regional magistrate on 22 October 2016.
21 For instance, in October 2013, Judge Clive Plasket was taken to task over decisions he had made against government in regards to social security in the Eastern Cape.
22 Views from a journalist, a woman judge and Advocate Leah Gcabshe SC, a former member of the JSC.
23 Interview with an anonymous justice, 5 April 2017.
24 Statistics obtained from the Department of Justice and Constitutional Development.
25 Deputy Judge President Patricia Goliath was appointed in May 2016.
26 Paarl conference held by Democratic Governance and Rights Unit
27 Interview with an anonymous legal professional, 12 October 2016.
28 Interview with an advocate of the Cape Bar, 17 July 201
29 Interviews with both Judge Presidents 5–6 April 2017.
30 Address by Judge Kate Pillay at the Kwa-Zulu Natal legal sector Meeting,
31 Interview with a former Supreme Court of Appeal justice, 5 April 2017.
32 Interview with a professional journalist, 5 October 2016.
33 Interview with a JSC member, 18 May 2017.
34 Interview with Honorable Thandi Modise, 15 June 2017.
35 Interview with a senior judge, 11 January 2017.
36 This allows selected organisations and members of the public to comment on the candidates.
37 This was stated by former JSC spokesperson Dumisa Ntsebenza in 2012 and 2013.
38 See https://constitutionallyspeaking.co.za/criteria-used-by-jsc-when-considering-judicial-appointments/.
39 Interview with Judge President Mlambo 6 April 2017.
40 Others were Judges K Makhafola, N F Kgomo, A M L Phatudi and T J Raulinga.
41 Section f 2(ii) of the Regulation Gazette, No. 24596, 27 March 2003.
42 Interview with JSC member, 18 May 2017.
43 Interview on 2 April 2017.
44 JSC interviews held on 6 April 2017.
45 District magistrate is the lowest level of magistrate in the courts.
46 Interview with JSC member, 14 May 2017.