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Testing time for JSC

The Judicial Service Commission (JSC) is a crucial element in our constitutional democracy. It was an innovation in the 1993 transitional constitution and its establishment follows from the increased authority given to the superior courts to review the exercise of all public power in our society.

Once judges are given such a power, they need their independence to be assured, to be impartial and to balance these qualities with public accountability . Though such accountability continues to be achieved through functioning in open court, media scrutiny, peer review and appeal to a higher court, it is through the appointment, discipline and removal of judges that the other branches of government have their most direct opportunity to ensure a degree of check and balanc e under the separation of powers doctrine.

Thus the JSC counts among its members representatives of the executive and legislature, as well as judges and lawyers. Thus far the JSC has performed relatively well in discharging its mandate effectively to appoint most judges to the high court and supreme court of appeal (SCA), though there have been examples of demographic considerations trumping quality and experience.

However, its public performance in respect of disciplining judges for alleged misconduct has been astonishingly inept, as two separate panels of appellate judges in the SCA held last week. In effect, the SCA found the JSC had acted unlawfully in form (it was improperly constituted without the premier of the Western Cape) and substance (its decision to conclude the investigation into the constitutional court justices/judge-president John Hlophe dispute was tainted by irrationality). Thus 10 judges of the most senior court ( excepting the constitutional court in constitutional matters) have held the JSC to have erred in law. These judgments firmly endorse the rule of law as opposed to political pragmatism.

This hardly reflects well on the JSC . In addition, it must be noted that the JSC’s dismissal of Hlophe’s counter-complaint was not upset by the SCA, so that the JSC now faces a single inquiry, triggered by the complaint of the constitutional court justices. Lest this be seen as some sort of rearguard action of disgruntled “old order” judges, only three of the 10 were appointed before 1994.

These judgments are hugely significant because they embody the last word (in the law) on these questions. It stands to reason that no appeal can lie to the constitutional court, seven of whose current members complained about Hlophe’s visits to justice Nkabinde and acting justice Jafta in 2008. Few commentators have noted that the JSC appears already to have decided justice Jafta’s evidence is credible, because he was one of the candidates recommended to (and appointed by) the president to the court in October 2008, when judge Hlophe was not short-listed.

The speed with which the SCA disposed of the appeals means the JSC must confront the matter this week, during which it has convened to interview candidates for a number of judicial vacancies. The JSC’s chair, chief justice Ngcobo, as an interested party, must recuse himself, which leaves the SCA president, justice Mpati, to lead the JSC. They have only one option: allow the investigation to reach its logical conclusion before a properly constituted JSC and with the benefit of cross-examination, in open session. To attempt once again to evade this route will further damage the reputation of the highest courts . This is a huge responsibility because the legitimacy of the judiciary depends ultimately on the confidence ordinary citizens have in the courts. The country cannot afford another botched performance by the JSC.

Corder is professor of public law at UCT and a director of Freedom Under Law, which brought the review application on the substance of the JSC’s decision

Read the original article on FM.co.za here

This article applies to: Middle, Rontree 1, Rontree 2, Glen, Bakoven, Village, Clifton, CPF