JSC must urgently fill vacant posts and hold judges to account

On Tuesday, the Judicial Service Commission (JSC) will meet in Pretoria to interview aspirant judges for vacancies at the Electoral Court and the Labour Court. On Wednesday, it will decide on two crucial disciplinary matters. Judges Matter is concerned with the slow pace in which the JSC is filling judicial posts and holding judges to account.

FIVE JUDGES NEEDED FOR ELECTORAL AND LABOUR COURTS

The JSC is under pressure to fill two vacancies at the ailing Electoral Court ahead of the 2026 local government elections, but only one person has applied and will be interviewed on Tuesday.

The court had to navigate the highly contested 2024 national elections with only two permanent judges, when it is supposed to have five members: three judges and two non-judges. This placed enormous strain on the court (as Judges Matter pointed out at the time). 

Johannesburg High Court Judge Leicester Adams, the sole candidate for the upcoming interview, was acting judge at the Electoral Court at the time. He recently wrote a judgment dismissing the African Transformation Movement’s challenge to the 2024 national elections. He has previously been interviewed by the JSC but not appointed. This will be his third attempt at the job.

The Labour Court is also under severe strain because of large case backlogs and too few judges (only 13, to serve the whole labour market). Senior judges at the court have retired or been promoted. On Tuesday, the JSC will need to fill three Labour Court vacancies: two in Johannesburg and one in Cape Town.

Luckily, the JSC is spoilt for choice: there are four candidates with an average of 20 years’ labour law experience between them. Three of them are women, one is a man.

SOME VACANT POSTS WILL NOT BE FILLED

The JSC will not be filling several fully-funded judicial vacancies. We raised this concern in our submissions ahead of the 1 April interviews.

There are two vacancies on the Competition Appeal Court – a vital court whose judgments affect multibillion-rand merger and investment transactions – which arose due to retirements and promotions.

While several judges of the High Court have acted in the court in the last year, none put their hands up when the JSC advertised the vacancies, which is surprising. We can only speculate that none felt ready to serve permanently on the court.

Judges Matter has repeatedly proposed in its submissions to the JSC that the JSC must play a strategic ‘Human Resources function’ in relation to the Judiciary. The JSC must monitor the personnel shifts of judges across the judiciary, including monitoring new appointments, retirements, and promotions. This would ensure a steady pipeline of talented, competent and specialised judges to serve on specialist, appellate and high courts.

Several vacancies will not be filled at the Constitutional Court and high courts in Eastern Cape, KwaZulu-Natal, Western Cape, and Gauteng, because the JSC did not advertise the roles, which were already open since the last JSC interview session in October 2024.

The JSC might be worried that no suitable candidates would apply. This is worrying, considering the vast number of skilled advocates and attorneys who regularly serve as acting judges but may not have confidence in the JSC’s interview process.

MORE JUDGES ARE DESPERATELY NEEDED

Minister of Justice Mamoloko Kubayi is expected in a private meeting with the JSC to give an update on the Moseneke Committee’s recommendations on the final judicial establishment (the number of judges posts needed) at the various High Court divisions in the nine provinces.

Since 2021, the Moseneke Committee has conducted a detailed study to “rationalise” the High Court, by redrawing some jurisdictional lines and increasing the judicial establishment. This issue is particularly urgent in the face of the crisis of court backlogs due to there having been no increase in the number of judges since 2008. The earliest trial dates in the Gauteng High Court are being issued for 2031.

JUDICIAL DISCIPLINARY CASES

On Wednesday, 2 April, the “small” JSC (sitting without MPs) is scheduled to meet to make final decisions in two major cases involving judicial discipline.

The first case involves Gauteng High Court Judge Nana Makhubele, who was found guilty by a Judicial Conduct Tribunal of gross misconduct for acting as a judge while also being the board chairperson of state rail agency PRASA. This is prohibited by law. She was also found guilty of judicial misconduct for improperly interfering with PRASA’s operations, including stifling efforts to resist state capture and corruption.

If the JSC confirms these findings, they are likely to recommend that Parliament remove Makhubele from office through impeachment.

The JSC will also have to decide on whether it endorses the Judicial Conduct Committee’s recommendation that retired Chief Justice Mogoeng Mogoeng face a Judicial Conduct Tribunal on allegations made by impeached former judge John Hlophe, who accuses Mogoeng of improperly meeting with and urging Western Cape Deputy Judge President Patricia Goliath to file a misconduct complaint against Hlophe.

If the JSC endorses the recommendation, Mogoeng will be the first chief justice to face an impeachment inquiry.

In its submission, Judges Matter draws attention to the slow pace of judicial misconduct proceedings against judges, and how the JSC needs to streamline and properly resource the judicial misconduct system.

The first step would be amending the JSC Act to increase the size of the Judicial Conduct Committee and its secretariat. A bill on this issue is currently before Parliament, and Minister Kubayi is also expected to update the JSC on it.

JSC COMMISSIONERS NEED A CODE OF CONDUCT

The JSC must repair its negative image within the legal community. There is a perception that the JSC’s processes are irrational and unfair, and subject to political whims and misbehaviour by commissioners.

To its credit, since 2022 the JSC has worked to improve its image by, for example, adopting rigorous criteria to guide how it conducts its interviews. But it needs to work harder at holding commissioners to account.

Judges Matter has proposed that the JSC adopt a Code of Conduct for Commissioners. Based on comparative research of countries with similar judicial appointment commissions such as Kenya, Mexico, Serbia and North Macedonia, Judges Matter proposes a set of guidelines to regulate commissioners’ behaviour, including an enforcement mechanism.

Judges Matter will be following the JSC interviews closely and will give regular updates.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter.

This article first appeared on GroundUp. Read the original article here.