Justice delayed, justice denied: A constitutional crisis in SA
24 November 2023
The chronic inefficiency plaguing the Judicial Service Commission (JSC) and the persistent delays in delivering judgments by our courts raises serious constitutional concerns, jeopardising the very essence of justice in our democratic society.
The recent delayed impeachment proceedings against judges John Hlophe and Nkola Motata have exposed the JSC's repeated failures in fulfilling its core constitutional obligations. These failures cast doubt not only on the JSC's ability to uphold the principles enshrined in the Constitution, but also affect the independence and resilience of our judiciary, which is of course, a linchpin of our constitutional democracy.
The JSC, as mandated by the Constitution, is entrusted with the vital task of recommending individuals for judicial appointment. Section 174 of the Constitution requires the appointment of any “appropriately qualified” man or woman who is a “fit and proper person”. “Fit and proper” requires, in essence, the appointment of judges who will, in accordance with section 165(2), uphold the principle that “the courts are independent and subject only to the Constitution and the law which they must apply impartially and without fear, favour or prejudice”. Once candidates can comply with these requirements, consideration must be given, in accordance with section 174(2), to “the need for the judiciary to reflect broadly the racial and gender composition of South Africa.
However, recent events, notably the appointment of judges to the Supreme Court of Appeal (SCA), expose a stark deviation from these constitutional principles.
The JSC's decision to selectively fill only two of four advertised SCA vacancies raises serious concerns about its efficiency and transparency. The undisclosed reasons for this failure, relying on subjective criteria like "writing abilities" and "symbolism from a transformation perspective", undermine merit-based standards and constitutional principles. This departure highlights a fundamental inefficiency in the JSC's decision-making process, casting doubt on its commitment to judicial integrity and adherence to constitutional norms.
The Council for the Advancement of the Constitution (Casac) and Freedom Under Law’s (FUL) legal challenges specifically target the inadequacy of the JSC's vague justifications, questioning the lack of transparency and failure to address post-interview concerns. Both legal actions urgently demand a meticulous review of the decision-making process, emphasising the imperative for accountability and constitutionally sound judicial appointments within the JSC's operations.
More seriously, there must be no doubt regarding the willingness and ability of successful candidates to accept that they will be subject “only to the Constitution and the law” – irrespective of any personal ideologies or political loyalties that they may have.
The JSC's failure to provide clear, justifiable reasons for appointments, coupled with allegations of bias and unfounded criticisms against certain candidates, not only weakens the integrity of the judiciary but also erodes public trust in the institution. The lack of accountability within the JSC undermines the very principles it is mandated to uphold.
Shifting focus to the courts, the delays in delivering judgments are alarming. As of the last available data, the Constitutional Court had four outstanding judgments for more than six months. The poorly maintained and outdated state of the Court's website adds to the opacity surrounding case statuses, violating the principles of transparency and accessibility outlined in the Constitution.
Judicial norms and standards dictate that judgments should generally be delivered within three months after the last hearing. The failure of our courts to adhere to these norms not only undermines the rule of law, but it also compromises the effectiveness of the justice system. The latest Reserved Judgment Report for the Chief Justice reveals that, across the country, at least 264 judgments have been outstanding for at least six months, with the Gauteng High Court in Johannesburg having the highest number of reserved judgments.
In conclusion, the persistent inefficiencies within the JSC and the alarming delays in delivering judgments by our courts pose an imminent threat to the very foundations of our legal system. As the supreme law of the land, the Constitution mandates these institutions to function with unwavering transparency, accountability, and efficiency. The critical need for immediate and comprehensive reforms cannot be overstated; without such reforms, the strength and credibility of our judiciary hangs in precarious balance. The stark realities presented by these statistics underscores not only the urgency needed to address these systemic issues, but also the looming peril of a compromised rule of law and a further erosion of public trust in our vital judicial institutions.
Issued by FW de Klerk Foundation, 24 November 2023
