JUDICIAL APPOINTMENTS: JSC fills Supreme Court of Appeal vacancies amid pressure to reform

Forty-three interviews for 22 vacancies across 11 courts is the livestreamed pressure on the Judicial Service Commission (JSC) that the nation sees, but away from the public eye there is a different stress on the constitutional body: reforming its rules to allow for the recall of any commissioner who breaches standards of conduct.

Effectively, these reforms would allow the JSC to request a nominating institution like Parliament, a legal professional body or the President to recall and replace or discipline the representative.

On Monday, the JSC interviewed five candidates for three vacancies at the Supreme Court of Appeal (SCA), probing them on issues ranging from outstanding judgments to the use of AI.

Judge Gerald Bloem, who was unsuccessful in the April interviews, was quizzed about his ruling on an interim interdict in the wider legal challenges that ultimately banned Shell from oil and gas exploration off the Wild Coast. 

“I think I had 10 days in which to make that decision… It was a very, very delicate balancing act between these two rights. The courts do that all the time.”

Judge Mokgere Masipa was asked why, with her labour law background, she did not apply to the Labour Court, or Labour Appeal Court – specialist courts with critical vacancies the JSC seeks to fill.

“While I come with a very strong background of labour law and employment law, I have had more time in the high court doing a variety of areas of law,” she replied.

Judge Ingrid Opperman said it was 10 years to the day since she last appeared before the commission. Having completed three acting stints at the Constitutional Court and one at the SCA, she described her time on the appellate bench as a “life-enriching” experience in a collegial environment where “everyone’s focused on doing what’s best for the country”.

Judge Mmathebe Phatshoane, Deputy Judge President of the Northern Cape, had a comparatively short interview, emphasising work in being a role model for young women.

Judge Esther Steyn, the most senior KwaZulu-Natal judge and a drafter of the Jali Commission report into corruption in jails, described her time in the Electoral Court as “a pressure cooker” that had prepared her for the appeals court in Bloemfontein. Addressing whether electoral justice is fully understood, she noted: “It is not just the procedural backwaters.”

The interviews, lasting until 13 October, will seek to recommend appointments for the Gauteng, KwaZulu-Natal, Western Cape, Northern Cape and Eastern Cape divisions and the specialist labour, land and competition appeal courts. It will be up to President Cyril Ramaphosa to make and announce the appointments.

“These interviews come at a difficult time for the specialist courts,” said Judges Matter, a judicial transparency advocacy group, pointing out the high number of vacancies.

“While the JSC’s proceedings have often been better known for drama and sensation, it remains a crucial body. Its decisions on the appointment and discipline of judges are essential for a strong and independent judiciary that can dispense justice speedily and effectively to all.”

Meanwhile, EFF leader Julius Malema on 29 September apologised in the National Assembly for his questioning of Judge Keoagile Matojane, who had ruled against the EFF, during the April 2021 JSC interviews. While the Council for the Advancement of the South African Constitution laid a complaint to the parliamentary joint ethics committee in May 2021, parliamentary processes and Malema’s court challenges meant the apology was only given last week.

The issue remains highly topical following litigation by the Helen Suzman Foundation against Parliament. The foundation argues that the national legislature was obliged to review Malema’s JSC membership after his hate speech finding and a five-year prison sentence for a firearms conviction – though the Eastern Cape High Court in Makhanda has granted him leave to appeal the sentence.