Justice — who appoints the judges?

By Anton Katz SC

Justice is key to a better society. Parashat Shoftim, Deuteronomy 16:18 – 21:9 opens with the summons to “appoint judges and officials for your tribes… and they shall govern the people with due justice. You shall not judge unfairly.”

Rituals are essential and beautiful, but they remain frosting. Goodness, justice and decency form the basis of a good and caring society.

The Torah insists, “Justice, justice shall you pursue”(1). And part of justice depends on who dispenses it. It is of no value to have judges who are partial to one group or certain ideas. Judges are the custodians of justice in society. Independent, fair and learned members of society assist in resolving disputes peacefully. Violence, destruction and unhappiness can be avoided or limited by the actions of wise and fair judges. The Constitution recognises this by commanding that courts must apply the law “impartially and without fear, favour or prejudice”, and the oath of office prescribed by schedule two requires each judge to swear that he or she “will uphold and protect the Constitution… and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.”

The judicial branch is responsible not only for resolving disputes between private parties, but also for resolving disputes between government and private parties, and even disputes between different branches or sectors of government. It has the responsibility to protect individuals from government overreaching, and it plays an important role in South Africa’s constitutional balance of powers. The Constitutional Court has commented that “Unlike Parliament or the Executive, the Court does not have the power of the purse or the army or the police to execute its will. The superior courts and the Constitutional Court do not have a single soldier. They would be impotent to protect the Constitution if the agencies of the State which control the mighty physical and financial resources of the State refused to command those resources to enforce the orders of the courts. The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite, and no sinews to execute what may then become a piece of sterile scholarship. Its ultimate power must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation. That esteem must substantially depend on its independence and integrity.”

In South Africa, to become a judge is unlike many professions as one does not study specifically at university to become one, and then apply. There is no ‘judging’ degree or certificate in South Africa. In some countries, particularly those that follow what is known as the civil law system, individuals study to become judges at university. In South Africa the Constitution says that any appropriately qualified person who is considered fit and proper, may be appointed as a judicial officer. So, the interesting and difficult question is: how and who are to appoint judges, the custodians of justice?

Each country has different mechanisms for the appointment of judges. In some societies judges are appointed by the head of state, such as a King, Queen, Chief or President. In some, the Queen or other head of state plays the role of judge herself. In other societies, the citizens vote in contested elections for judges. And in other societies, juries consisting of peers play the role of judging. There are no juries in South Africa; only judges and magistrates who adjudicate disputes.

Judges in South Africa are appointed by the President on the advice of the Judicial Service Commission (JSC). The South African Constitution establishes a Judicial Service Commission effectively to control the President’s appointment of judges. In recommending candidates for appointment as judges, the JSC must determine whether the individual is a fit and proper person to be appointed. Thus, the composition of the JSC becomes important. In the past few years, the JSC has increasingly been criticised for conducting itself in an unbecoming and unlawful manner.

There have been complaints that certain candidates are targeted for their religious, cultural and political affiliations. Recently, the JSC put out a media statement refuting the SA Jewish Board of Deputies’ complaint that it had targeted Jewish candidates, including Judge David Unterhalter.(2)

CASAC (Council for the Advancement of the South African Constitution) has also launched a High Court challenge declaring certain conduct of the JSC to be unlawful. How the High Court rules on CASAC’s case will be interesting and important.

Who sits on the JSC is obviously significant. Like all parts of the Constitution, the composition of the JSC reflects a compromise between competing parties and values during the drafting of the Constitution. Some parties sought limited representation by politicians, whereas others were concerned with legacy of apartheid judges and wished for greater influence by the incoming government.

The JSC consists of 23 members. Ten of the commissioners are parliamentarians and another four are appointed by the President. The other members are three of the most senior judges, the Minister of Justice, a law professor and four commissioners who are practising advocates and attorneys. It is immediately apparent that political parties play a relatively dominant role in deciding who becomes a judge. Questions arise as to whether that is a fair and just system. Is justice somehow compromised or watered down when the judges whose task it is to uphold justice are appointed by persons elected by the citizens? There is probably no perfect appointment regime. Every system will have advantages and disadvantages. Judges are human and those who appoint the judges are human. So, the best justice can hope for is that although judges, when dispensing justice, and the JSC when appointing judges will make mistakes, that those errors will be rare rather than the norm. That’s what justice demands.


(1) https://www.myjewishlearning.com
(2) https://www.judiciary.org.za/images/news

Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.

• Published in the PDF edition of the July 2021 issue – Download here.

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