Yacoob laments ‘subjective’ judicial appointments

Retired Constitutional Court justice Zak Yacoob has lamented what he called the “flawed” approach used by the Judicial Service Commission when appointing judges.

In a lecture given at the University of the Witwatersrand last night, Yacoob said he “doubted whether the Constitution ever intended that members of the Judicial Service Commission could vote subjectively for the candidate they prefer, regardless of any objective evaluation.”

Yacoob was referring to the fact that members of the JSC interview candidates for judicial appointment and then select their preferred candidate by means of secret ballot.

“I don’t think the appointment of judges can be dependent on the views and feeling and thoughts … of what the people of the Judicial Service Commission are thinking then or on what they had for breakfast,” he said.

Yacoob said he was “quite sure” that the JSC should have guidelines which they should apply with “discipline and care”.

In terms of the Constitution, the JSC has the power to determine its own procedures, but these must be supported by a majority of its members.

Professor Cathi Albertyn, a professor of Constitutional Law at Wits, agreed with Yacoob that there should be a set of guidelines for the JSC to follow when appointing judges.

“We need to have clear, defined criteria and we need to be confident that politicians (who serve on the JSC) are acting in terms of that criteria,” she said.

Albertyn said a criterion of having acted as a judge appeared to be developing, but said only nine percent of acting appointments went to women judges.

Women judges are drastically underrepresented in South Africa’s courts, with only two female judges serving on the bench of the Constitutional Court.

Albertyn said only political activism would ensure there was gender representivity in South Africa’s courts.

Yacoob also spoke out on a variety of other subjects related to the judiciary in South Africa.

Asked if the Constitution was “imposed” on the “majority” of South Africans who did not necessarily share its values, he said people who held that view were free to mobilise a 75% majority in Parliament and change the Constitution.

“You can’t determine things by people’s opinion of what the majority thinks” Yacoob said.

The talk, organised by the Wits School of Law, was one of the first of a series called “In conversation with members of the judiciary”.