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.