Judging By the People

We approach seventeen years of democracy in South Africa (SA) with the question of whether the selection of judges to the various courts (Constitutional and Supreme courts) should be inclusive of public opinion. Currently, the position stands where the president of SA can appoint or remove: the Chief Justice, judges of appeal, the judge president, the deputy judge president, and all judges of the Supreme Court who are fit and proper. The Judicial Service Commission (JSC) presents its opinion to the state president for matters relating to the president and deputy president of the Supreme Court; and in matters of removing said judges, the matter must be raised in both Houses of Parliament. The JSC is responsible for drawing up a list of candidates for the state president to choose a judge from, it is understood that this body enjoys a degree of independence to elect candidates to the judiciary. However, its composition is anything but that; its members range from representatives of the National Assembly and the National Council of Provinces, and the president of the Supreme Court of Appeal. The JSC as it stands is far from the independent structures it claims to hail from.

SA prefers a system of representative democracy whereby the different political parties are elected to the legislature filling a number of seats that are proportionate to the results of the election, with the party trusted to place members to the legislature. The United States (US) uses a truer stand of democracy with most of its Parliamentary members elected directly by the People and its results determine the proportion of each party in Parliament. As such, the US uses a set of confirmation hearings to confirm the president’s choice to the judiciary. Indeed, this confirmation is done by Parliament and could be said to be very similar to that of SA’s JSC. However, the People can object to the appointment of the candidate. In the case of Sotomayor J, she was asked (publicly) in the confirmation hearings on issues pertaining to her race, her up-bringing, her stand on fundamental rights, and her positions that would affect the people at large, should she be elected to the Supreme Court. Unfortunately, in SA, we are too concerned on whether or not we have elected enough black people or have elected too many white people, or if we have enough women on the bench, we might as well worry if we have people with purple and orange hair rather than examine whether or not a candidate possesses the qualities of a fit and proper person according to standards of the People.

At the moment the grading of the standard of a fit and proper person is left to people who have not been directly elected by the South African public, without the inclusion of the People at large – and that cannot be democratic. As South Africans we must be able to nominate or to have a say as to what type of a person will have the responsibility of pronouncing judgement on matters that could have fundamental impacts on the lives of ordinary South Africans.

  • Jonathan Haenen

    I would hate to hold the US or UK systems of paragons of democratic freedom. While it is true that people have direct say about who gets to sit in congress or parliament, in reality voters tend to choose along party lines with only a small section of the population providing any swing opinion (in the areas where a swing is even possible). Moreover, were similar systems put in place in South Africa, the overwhelming support for the ANC, spread generally evenly over the whole of the country, would mean that 399 seats in the National Assembly would be ANC, with one DA seat voted for by the lofty Capetonians. I like the fact that a parliament, while proportionally representative of broader party policy, can consist of members elected there based upon their intellectual ability. I agree that it is a pity that this does not happen very often in South Africa…

    • Kirith Haria

      Yes, I agree that what actually happens differs to that of what is in theory. I merely made the comparison of the two systems to show a difference in the effectiveness and inclusiveness of assessing potential judges in our courts. I believe that we as ordinary South Africans should have more of a say as to who can pass judgement; simply leaving it up to parliamentarians may not be sufficiently adequate.

  • Anon

    In terms of Section 178(1) of the Constitution, the JSC is comprised of either eight or nine independent lawyers and fifteen or sixteen members who may be lawyers but are typically political appointees. Only three of these are required to be members of opposition parties. The purpose of having a political component on the JSC is to provide a check on the power of the judiciary by the legislature and executive, and as such a completely independent JSC is arguably undesirable. Unfortunately, in practice this check threatens rather than safeguards separation of powers when members of the ruling party load the JSC, opening up the nomination of judges to political bias.

    If more of an opposition presence on the JSC was constitutionally required, the legislature/judiciary tension would be similar to that which exists in the US, where the Senate may approve or obstruct the appointment of judges in confirmation hearings. Whilst the public do have an opportunity to voice their opinions at these hearings, and indeed there have been a few instances where the public has influenced the Senate, the final decisions remain in the hands of these representatives, who although directly elected, are still politicians with political agendas. Therefore, in the US as in South Africa, there is no real “public election” of federal judges (although in certain states state judges may be directly elected by public vote).

    Public election of judges might make sense at a regional level, where the support of the electorate is often required to carry out the implementation of judicial decisions. It makes less sense at a national level, particularly in a country such as South Africa, where the judiciary plays a fundamental role in protecting minority interests.