Several years ago, a lawyer told me that there were seasoned advocates who had been around the block and whose only aspiration should be ascension to the bench.
However, many of them vowed never to avail themselves because they would not like to be humiliated at interviews by the Judicial Service Commission (JSC).
That remark flashed back to mind when sometime last year, in interviews to fill positions at the Constitutional Court, candidates were ambushed and asked inappropriate questions. As a result of threatened legal action by the Council for the Advancement of the South African Constitution, the JSC agreed to rerun the interviews. But some of the judges who were unfairly interviewed did not avail themselves for the rerun.
One would have thought that the JSC would have learnt something from that fiasco and improved its handling of interviews. Talk has it that even more judges and advocates have vowed never to avail themselves of posts after the shambolic interviews for the position of chief justice recently.
This means that not all the best legal eagles would eagerly step forward to serve the country.
Anyone who has participated in interviews before will have been perplexed by the chaotic nature of the interviews by the JSC for the chief justice position. For interviews to be fair, by and large, all the candidates must be asked the same questions.
It appeared that at the JSC, anything goes.
It’s like a jungle, which unfortunately led to the ambushing and badgering of candidates, and slanging matches among the commissioners themselves.
It was an embarrassing spectacle that was devoid of expected decorum.
The impression could not be escaped that there were some JSC commissioners who used the interviews to settle scores emanating from past brushes in the courts or commissions of inquiry. Even those of us who are not lawyers can tell it is inappropriate to dredge up cases for review at the JSC. This body is not a court of law.
In the aftermath of the JSC interview fiasco, it was jaw-dropping to learn that there are no rules of engagement at the JSC nor for the sanctioning of misbehaving commissioners. So, commissioners can do as they please with impunity.
The whole sorry mess was a disservice not only to the judiciary but to the four candidates who were interviewed.
By all accounts, all of them are appointable.
It should be a particular heartbreak for Justice Mandisa Maya whose accomplishments and standing in the judiciary were diminished by repeated questions on her gender.
For heaven’s sake, she is head of the Supreme Court of Appeal and by all accounts, she is running it splendidly. Why bring in questions that would suggest her possible appointment would be based on her gender as opposed to her amply demonstrated capabilities?
Some say, apparently with good reason, that the JSC trespassed into the presidential garden by publicly announcing its preferred candidate, before the president had given the matter any thought. It is said that the JSC wanted to put the president under political pressure. They say the JSC should have interviewed, written a report and left the president with his constitutionally mandated powers to appoint a chief justice.
In the aftermath of the shambolic interviews, some are suggesting that the JSC be purged of politicians. That might be an overreaction and embarking on a journey to amend the constitution to enable that task might be a road too far.
The JSC need only adopt rules of engagement that will bring order and decorum to its proceedings as well as a code of conduct for its commissioners.
- Mangena is a former minister of science & technology
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