Leo Boonzaier | Acting up? The JSC and temporary appointments to the Constitutional Court

16 March 2015  There are four acting judges on South Africa’s Constitutional Court during the current term, as we noted in a recent post.  That is a remarkably high number.  It is bad for the Court’s integrity and independence.  Acting judges go through no formal appointment process, have neither secure tenure nor a sure footing in the Court’s internal politics, and create practical problems.

Acting judges are regularly appointed to the South African judiciary, and have been for several decades.  There are two common kinds of appointment.  The first is the appointment of someone who is not a judge (like a senior advocate or attorney) to act temporarily as a judge of a first-instance court.  The second is where an existing judge is temporarily elevated to the bench of a higher court.

This post is about appointments of the second kind, where judges of the High Court and Supreme Court of Appeal serve as acting judges on the Constitutional Court, the country’s highest.  It has eleven judges, who sit en banc.  The upshot is that, for the first term of 2015, well over a third of the judges hearing the country’s biggest cases will be acting, rather than permanent, appointments.  This is unprecedented (usually, only one member of the Court is an acting judge).  There are several reasons why this is troubling.

The first is the appointment process.  Permanent judges of the Court are carefully selected in accordance with section 174(4) of the South African Constitution (pdf).  Although the President makes the final appointment, he must pick from a shortlist of names approved by the Judicial Service Commission (‘JSC’), a body which is (perhaps only in theory) relatively insulated from undue political influence: the ruling party’s representatives on the JSC are offset by those from opposition parties, and by several members (including the Chief Justice, other senior judges, practicing lawyers and legal academics) with no overt political affiliation.  The candidates are interviewed in a public process that attracts media attention.

So the Constitution tries very hard — and for good reason — to ensure that the judges of the country’s highest court are carefully chosen by a representative and deliberative body.  Yet, for over a third of the Court’s current judges, that process has been bypassed.  The appointment of acting judges, in terms of section 175(1) of the Constitution, is very different.  They are appointed by the President on the recommendation of the Minister of Justice and Constitutional Development (currently Michael Masutha), who must act with the concurrence of the Chief Justice (currently Mogoeng Mogoeng).  No one else needs to be involved.  And the discussions between the Minister and Chief Justice are entirely private.  Mr Masutha might make party-political selections by decree.  Or the Chief Justice may insist on acting judges who he expects will be solid allies within the Court.  Or they might pull names out of a hat.  We simply don’t know.  (Most of us never even find out an acting appointment has been made.)  What we do know — problematically for judicial independence, or the perception of it — is that Chief Justice Mogoeng’s relationship with the current administration is sometimes claimed, rightly or wrongly, to be too cosy (for example, here and here).

True, the acting appointees will have been screened by the JSC when they were first appointed as judges.  But section 174(4) is testament to the fact that that is not enough.  Before they can decide the country’s most important cases, the members of our apex court should be specially tested.  For over a third of its current members, that has not happened.

The second problem is one identified by the International Bar Association’s Human Rights Institute.  In its 2008 report on judicial independence in South Africa (pdf), it observed that the appointment of acting judges “violates one of the fundamental safeguards of judicial independence — that of security of tenure”.  It therefore “urge[d] the government to reconsider the way in which acting judicial appointments are made given the inherent risk that these appointments pose”.

Acting judges on the Constitutional Court are invariably appointed from the ranks of sitting judges; there is no risk that they will be ousted from the bench altogether if they deliver a politically inconvenient judgment.  But being elevated to the Court reflects a massive promotion.  Acting judges might be hopeful of permanent appointment, and for that reason could be tempted to give judgments that please the powers that be.  And, even if that fear is baseless, the perception that they may be so tempted continues to exist.  In these respects, acting judges are in a signally different position from their colleagues whose tenure is guaranteed.

The Constitutional Court has authoritatively recognised that insecure tenure is inimical to independence.  It first did so in Van Rooyen, a case concerning acting magistrates.  Then the principle received a dramatic boost in 2011, when Chief Justice Ngcobo accepted a misbegotten extension of his tenure from President Zuma.  In JASA, the Court declared unconstitutional the law that allowed the extension.  Fixity of tenure, the Court said, “is a prime feature of independence” and “a dyke against judicial favour in passing judgment”.  The Court recently reaffirmed these principles in Helen Suzman Foundation.  “No holder of [a] position of high responsibility should be exposed to the temptation to ‘behave’ herself in anticipation of renewal”, wrote Chief Justice Mogoeng.  The same must be true of acting judges, who should not be tempted to ‘behave’ themselves in anticipation of permanent promotion.

To be sure, there is a major caveat.  The Constitutional Court has specifically addressed the question whether the system of acting judges is consistent with the need for judicial independence.  It held that it was.  The Court said in the First Certification case that acting appointments are made in many countries; serve an important practical need, namely to fill temporary vacancies when permanent judges are ill or on leave; and indeed give important experience and exposure to potential candidates for permanent appointment.

That is all true — and section 175(1) puts the matter beyond doubt.  But the number of acting appointments at South Africa’s Constitutional Court is now singularly high.  Its members in 1996, when the First Certification judgment was written, could not have foreseen a time when as many as four of their number would be non-permanent.  In addition, the Court spoke of cases where appointments have to be made “urgently” or “unexpectedly”, when a meeting of the JSC cannot easily be convened.  And it made plain that acting judges may be appointed only as an interim measure:

“Acting appointments are essentially temporary appointments for temporary purposes. … If there is a vacancy in a court the JSC is under a duty to fill it.  It may no doubt delay or defer an appointment until a suitable candidate is identified, but it should not be assumed that it will abdicate its responsibility by allowing permanent vacancies to be filled indefinitely by acting judges.”

This means the power to appoint acting judges is not unfettered.  Indeed, the Court held in Hlophe, in 2012, that section 175(1) of the Constitution permits acting appointments to the Constitutional Court in more limited circumstances than to other courts.  This is because of the “potential dangers to judicial independence and the separation of powers”.  Section 175(1) permits the appointment of acting judges, the Court said, only in the “normal instances” of vacancies and physical absences.

So we must dwell on the reasons for the four acting appointments.  Three are to fill short-term vacancies created by three permanent judges going on leave.  Here we could quibble, and say the Court should revise its internal processes so as not to allow three of its members to go on extended leave simultaneously.  But the more pressing issue of principle is the fourth acting appointment.  This vacancy was created not by a temporary absence, but by the permanent retirement of Justice Thembile Skweyiya in May 2014.

It has now been almost a year since Justice Skweyiya’s retirement — which the JSC must have known about in advance, since it was triggered by the statutory age limit — yet there is no sign of his successor.  The vacancy has not even been advertised.  Instead, the position was left totally empty for one term; then Acting Judge Monica Leeuw was appointed for six months; and now a new Acting Judge has replaced her.  This seems to be approaching the sort of breach of duty by the JSC that First Certification described: “allowing [a] permanent vacanc[y] to be filled indefinitely by acting judges”.

A recent comparator springs readily to mind, of a months-long period of acting appointments to an office that is constitutionally required to be independent.  Nomgcobo Jiba was the Acting National Director of Public Prosecutions (‘NDPP’) for ten months after Menzi Simelane was suspended and his appointment nullified (as a result of this judgment, and then this one).  The Council for the Advancement of the South African Constitution (‘CASAC’), an NGO, rightly pointed out that the absence of a permanent NDPP, with security of tenure, was inconsistent with the prosecuting authority’s independence.  It applied to the Constitutional Court seeking an order compelling President Zuma to appoint a permanent NDPP.  Given its previous judgments like JASA, it seemed sure the Court would grant the application.  And so President Zuma was spurred to action.  He made a permanent appointment just before the passing of the deadline set by CASAC (which did not, therefore, need to pursue its application).

Is the protracted failure to fill Justice Skweyiya’s position any different, any less clearly at odds with independence?  Chief Justice Mogoeng has said he wants the appointee to be a woman (see his original statements quoted here), and that the JSC will “take some time”, during which it will give acting stints to some potential appointees, so that it is “spoilt for choice” when the interview process begins (here).  And, indeed, most of the acting appointments to the Court in the last eighteen months have been women.  So the JSC might say it is “delay[ing] or defer[ing] an appointment until a suitable candidate is identified”, as First Certification implied was permissible.

But that judgment clearly meant a delay is permissible only until the JSC’s normal interview and recommendation process can be completed.  It did not approve the JSC’s postponing its selection process altogether — not even beginning it — for almost a year.  And it cannot be right that the independence of our highest court is jeopardised in order to give candidates (even badly needed women candidates) a test run.  It is indeed convenient that, when acting judges are necessary for practical reasons, the appointees get some experience and exposure.  But that doesn’t mean vacancies should be encouraged and extended for that purpose.  There are, after all, many ways to assess a candidate’s ability.  As Franny Rabkin has rightly argued, there is no need for a dry run in the Constitutional Court — yet that has, for some reason, become de rigueur.  In addition, when acting judges are handpicked with a view to their permanent appointment, it compounds the widespread impression that the JSC selects its preferred candidates before the application and interview process, not after.  (One might also question the JSC’s offensive insinuation that it has to spend almost a year to find a capable female candidate, but that’s another story.)

Acting appointments have other, subtler effects.  One overlooked feature of judicial independence is the independence of judges from each other.  This is especially important for our Constitutional Court, whose system of en banc sittings is justified by the need to ensure that its deliberations benefit from the wisdom of each judge, and its decisions reflect each of several diverse views.  This cannot happen if some judges tend to fall into line behind certain, dominant members of the Court — including, most obviously, the Chief Justice who was crucially involved in appointing them, and who will also help decide whether they are permanently appointed — or lack the sure-footedness to express their own views in hearings and collegial debate (and, if necessary, to dissent).  An acting judge is rarely at the Court long enough to find her feet, and her own voice.  Until she is permanently appointed, she may feel herself, for understandable reasons, to be a judge of second rank, who is not at liberty to impress her own views on the permanent members and who should not rock the boat.  None of this reflects on the individuals currently acting, but this is an instance where considerations of principle and public perception predominate.

Finally, the system of acting judges at the Constitutional Court is simply impractical.  An acting appointment is usually made for one or two terms.  It is effective shortly before the Court begins its sittings, giving the acting judge limited time to prepare, and ends soon after, when the judge usually leaves Johannesburg to return to her court of permanent appointment (often the Supreme Court of Appeal in Bloemfontein, but also, sometimes, the provincial High Courts).  Yet deciding a case is a long process; the Court’s judgments are usually handed down about six months after the hearing.  The upshot is that the acting judge’s judgments, or the bulk of them, may have to be written long after she has left the Court — and once she has resumed full-time responsibilities at her court of permanent appointment.  If so, the author will have limited time to spend on her judgments.  She also cannot easily benefit from input from the other judges of the Court, from whom she is geographically separated.  (Nor, conversely, can they benefit from her input.)  And if the other judges disagree, or dissent, the logistical problems will multiply.

So what can be done?  It’s unclear.  The Court has often acted ferociously to preserve the independence of South Africa’s institutions.  But the lack of independence here is in the Court itself.  Could it rule, in effect, that its own composition is unconstitutional?  Would any lower court dare to do so?  Many (including some judges) say that South Africans rush too quickly to court to solve political problems.  Here it is very difficult to do that — or more difficult, at least, than in the case of the President’s failure to appoint a permanent NDPP.

But, to be clear, the underlying problem is a much deeper one than the Court’s current composition.  It is the increasing opacity of the JSC, which has still not told us when it will make a permanent appointment.  Though the JSC is right to want to appoint a female judge (see here and here), it has not acknowledged that its ponderously slow method of doing so is in tension with constitutional requirements.  This does little to allay perceptions that the JSC’s powers have become concentrated in the hands of two or three decision-makers who are increasingly unaccountable.

Leo Boonzaier

About Leo Boonzaier

Leo is an Editor for the African Legal Centre, and he reports on the Constitutional Court of South Africa. He has BSocSci and LLB degrees from the University of Cape Town and a BCL from the University of Oxford. He has worked as a visiting researcher at the Max Planck Institute for Private Law in Hamburg, Germany, and more recently as a law clerk at the Constitutional Court of South Africa. He is currently a doctoral student at the University of Oxford.