South African courts have a major problem

South Africa’s judiciary has been criticized for its poor hiring practices, which have resulted in the appointment of underqualified judges, incorrect judgements, and years-long trial delays.

This was explained in the Centre for Development and Enterprise’s (CDE) latest report, ACTION FOUR: How to Appoint a Strong Judiciary.

In this report, CDE urged new Chief Justice Mandisa Maya to help reform the Judicial Service Commission (JSC) to ensure the country’s top legal talent is chosen as judges.

“The judiciary in democratic South Africa has maintained its independence, but there are warning signs of trouble brewing now and into the future in terms of the quality of judicial appointments,” CDE executive director Ann Bernstein said. 

“We should not take the judiciary – this pillar of our democracy – for granted.”

She explained that there are powerful political forces in parliament, elite looters of the state, and other criminals who do not want a strong independent judiciary.

“There are factions within the ruling party and other parties who don’t believe in the Constitution or the notion of being held accountable by the judiciary,” she said. 

“The official opposition party has designated to the JSC a disgraced former judge who was impeached for attempting to influence judges to rule in favour of former President Zuma.”

Between 2011 and 2023, the JSC faced at least five situations where the courts either invalidated its decisions or conceded its shortcomings and settled cases against it.

The JSC’s decisions were successfully challenged in cases involving the misconduct of judges Hlophe and Motata and in its 2011, 2021, and 2023 appointments.

“That the JSC has been reviewed in the courts and forced to concede its errors under compulsion of law undermines its legitimacy and is a demonstrable failure of judicial leadership,” Bernstein said.

Part of the reason for this problem is that the best applicants have been driven away by the way the JSE has handled interviews and made decisions over the past 15 years.

Nominees face unpredictable, inconsistent and sometimes abusive treatment during JSC proceedings, driving away the best choices. 

According to the report, the JSC was forced to re-advertise vacancies in 2012, 2016, 2022, and again in 2024. 

Worse still, the interviews planned for October this year did not draw even enough applications for the vacancy on the Constitutional Court.

As a result, the selection pool does not represent the country’s best lawyers, and the quality of judges appointed has declined.

Even in cases where qualified and competent applicants do apply, they are not necessarily hired.

Last year, Freedom Under Law (FUL) expressed concern that the JSC did not fill two vacancies on the Supreme Court of Appeal (SCA), including rejecting the candidacy of one of South Africa’s top jurists, Judge David Unterhalter.

“The JSC’s decision to leave vacancies open, despite being presented with candidates of this quality, will further dissuade the best lawyers from applying for judgeships,” FUL said. 

Furthermore, the JSC has been ineffective in handling complaints against judges, often taking years to resolve them.

The results of these poor hiring practices are increasingly clear, CDE said. Trials are delayed – in some cases for decades – and judgements are postponed for months and, in some cases, for years.

Criminals often hire skilled legal teams, which can overpower public prosecutors with fewer resources. South Africa needs strong judges to protect the public interest in such cases, as weak judges can undermine the rule of law.

“Our economy needs skilled, talented judges to deal with the complexity of a sophisticated economy operating within a democratic constitution,” Bernstein said.  

“A country grappling with state capture and industrial scale corruption needs judges of experience and considerable legal expertise.”

“A new government, a new Minister of Justice and Constitutional Development, and a new Chief Justice starting her tenure this week create an opportunity for reform.” 

She explained that key sections of civil society and business are too complacent about the state of the judiciary. 

“This is a grave error. A World Bank study using country-level data has shown conclusively that countries with more effective judiciaries have higher levels of economic growth and business formation.”

“In the last thirty years, SA has made real progress transforming our judiciary. Now, we face a new threat.”

“For the first time since we became a democracy, the official opposition wants to tear down our Constitution. A strengthened judiciary is essential to preserve the rule of law and our constitutional democracy.”

CDE said that strengthening the judiciary should be a priority for the GNU, as well as for organised business and business leaders in their talks with the President. The quality of our judiciary is crucial for the nation’s future prosperity.

“The GNU, the Minister of Justice and Constitutional Development and the new Chief Justice have an essential role to play in strengthening our judiciary and – with it – the foundations of our constitutional democracy,” Bernstein concluded.

Recommendations

In light of these challenges, CDE recommended a number of practical actions which would strengthen the country’s judiciary. 

First, CDE said that Parliament, the NCOP, and the Presidency must appoint JSC commissioners who prioritise the national interest over political or sectional interests.

They, along with professional legal bodies that nominate JSC candidates, should be held accountable for their choices.

Next, it said that JSC members must assess judicial candidates based on clear, objective criteria. The new JSC guidelines for selecting judges should be applied fairly, focusing on the candidates’ legal record, peer respect, work efficiency, and judgement.

The new Chief Justice should also provide stronger leadership in JSC activities, especially in how interviews are conducted, decisions on who to recommend to the President, and how judges are disciplined.

The JSC’s composition is overly political and should be rebalanced to give judges more influence in evaluating candidates, CDE explained.

This would require a constitutional amendment, restoring the balance from the interim Constitution, which had four Members of Parliament on the JSC instead of the current twelve.

Although constitutional changes take time, other urgent amendments are being considered, offering an opportunity to address this issue.

Further, the JSE need to be provided with more research support since appointing judges is such a complicated process. 

Finally, CDE said that insufficient funding compromises the judiciary’s ability to uphold a strong rule of law and independence.

Courts must be properly resourced with safe, well-maintained facilities, top-notch IT systems, and functional support.