Hours after Freedom Under Law (FUL) launched its challenge to the Judicial Service Commission's (JSC) failure to fill two vacancies at the Appeal Court despite interviewing  "eminently suitable" candidates, South Africa's judges spoke out about how a growing capacity crisis was delaying justice.

FUL's case is focused on the JSC's October 2023 interviews to fill four vacancies at the Supreme Court of Appeal (SCA), whose Deputy President Xola Petse had repeatedly stressed was desperate for competent and hard-working judicial officers to fill the void left by the multiple judges who had retired or been promoted from South Africa's second-highest court. 

Despite that plea, the JSC chose not to fill two of the SCAs' two vacancies and snubbed several potential candidates – including respected judges David Unterhalter and Thina Siwendu.

On Thursday morning, FUL filed a two-part application at the Gauteng High Court in Johannesburg: Part A is an urgent review application aimed at forcing the JSC to reconvene and reconsider the judicial candidates it snubbed for appointment to the SCA; and Part B is an application aimed at ensuring that, in future, judicial candidates can't be excluded on arbitrary grounds.

According to FUL, this Part B application seeks "an order that the JSC develop and publish criteria to assess candidates for appointment through an assessment of objective criteria and to require commissioners to assess candidates in writing for compliance with these criteria".

In court papers, FUL executive officer Judith February contends that the JSC's "failure to appoint appropriately qualified and fit and proper permanent candidates for these vacancies weakens the SCA and leaves it under-resourced".

Worse still, she added, the "JSC's failure to fulfil its constitutional duties and to act in accordance with the Constitution and the law is likely to deter excellent candidates from accepting nomination and making themselves available for appointment to judicial posts". 

These concerns, as well as those raised by Petse, now appear not to be confined to the SCA.

Addressing the media after the conclusion of the 2023 Judges Conference, hours after the launch of the FUL litigation, acting Judge President of the Land Claims Court, Yasmin Meer, said the conference "had noted the need for the appointment of more judges and for the capacitation of judges with more resources to enable us to do our work efficiently and expeditiously".

Gauteng Judge President Dunstan Mlambo said the Judges Conference had also discussed "the rising workload of judges and magistrates, which is one of the reasons cases take a long time to be finalised through the judicial process".

He said judges had urged judicial leadership to urgently expedite initiatives aimed at addressing the need for "judicial capacity".

Chief Justice Raymond Zondo added that there were several complaints from the judiciary that "more judges should be appointed but posts have not been advertised and it's a matter that has been raised with government because that affects the cases that need to be done".

Those remarks will only intensify questions about why the JSC elected to fill only two of the SCA's four vacancies and snubbed candidates like Siwendu and Unterhalter – despite them both being called "excellent" by commissioners.

In papers filed at the Gauteng High Court in Johannesburg, February said the JSC "did not even consider the question whether to leave the two [SCA] vacancies unfilled" when it decided to recommend judges Fayeeza Kathree-Setiloane and Maleshane Kgoele for appointment to the SCA, leaving two vacancies at that court open.

While Kathree-Setiloane was clearly a favourite among commissioners (having received 20 votes from a pool of 23 commissioners), the JSC has revealed that some commissioners were "not convinced" by the answers that Kgoele gave in her interview "and whether these reflected an adequate grasp of legal principles". 

Like Siwendu, concerns over whether Kgoele had enough experience to qualify for appointment to the SCA were raised, but she still received the 12 votes the JSC said she needed to be appointed.

According to the JSC, this was after a first round of voting saw five unidentified candidates receiving enough votes to be appointed. Twelve votes were the minimum needed for an appointment, the JSC told the Council for the Advancement of the SA Constitution (Casac), in a letter detailing the reasons for its SCA appointments. 

For reasons that remain unclear, a second round of voting resulted in the three candidates who had previously qualified for appointment not getting the votes they required to be elevated to the SCA.

February said the JSC had "terminated its deliberations without considering whether to fill the remaining vacancies, whether any of the remaining candidates were suitable for appointment to those vacancies and, if more than two of them were suitable, which of them to recommend for appointment".

"The upshot was that the JSC did not fill two of the vacancies, not because it decided to leave them vacant, but because it failed to consider the question at all. This was a dereliction of its constitutional duty to recommend candidates for appointment whenever it is feasible and appropriate to do so, in circumstances where the JSC had shortlisted 11 candidates for the four SCA vacancies.

"It was an irrational abandonment of the JSC's own appointment process," she added.

What made this failure even more irrational, February stressed, was that Petse had "specifically described the crisis faced by the SCA, given the vacancies on that court and the loss of experienced judges over the past few years, and the urgent need to appoint more judges and particularly more heavy lifters". 

The JSC's letter to Casac reveals that Petse used this "heavy-lifter" term to describe Unterhalter – whose exclusion from the SCA appointment list EFF leader and JSC commissioner Julius Malema appeared to want to take credit for. 

The day before the SCA appointments were announced, News24 reported that Malema had remained silent during the JSC's first day of SCA interviews, which had focused entirely on questions that explored the judicial competence of the candidates vying for appointment to the SCA.

In an apparent reference to this, shortly after Kathree-Setiloane and Kgoele were confirmed as SCA appointees, Malema tweeted to this writer: "I don't just speak; I only spoke on your candidate, and now look at the results…"

The following day, in response to a News24 story about Unterhalter again being snubbed, Malema posted the following on X (formerly Twitter): "Remember, Malema never asked a question, provoking me for shit. Now, all racists are complaining, you can go to the nearest hell and catch the next ship out."

Posts like this will only fuel FUL's contentions that, without guidelines for the assessment of judicial candidates being consistently enforced and commissioners required to justify their decisions in writing, there was no safeguard against commissioners voting against candidates "for wholly capricious, arbitrary and illegitimate reasons".

FUL has taken particular issue with the fact that, during deliberations that he was not party to, Unterhalter was accused of racism and arrogance – without being given the chance to respond to these claims, which unnamed commissioners condemned as wholly without substance.

Asked by News24 on Thursday whether he believed the FUL litigation may ultimately assist the judiciary in addressing its growing capacity problem, Zondo said he had yet to read the application and was therefore not in a position to comment.

He stressed, however, that the JSC had given Casac a "detailed" account of its SCA appointment decisions.

During his address to the media on Thursday, it became apparent that Zondo believes the capacity constraints faced by judges would be best addressed by enabling the judiciary to operate as a fully independent entity that can control its own budget and is therefore not forced to "beg" the executive for the money it needs.

"There was a decision that the issue of the institutional independence of the judiciary should be expedited. Conference noted that, for a period of about 10 years after the judiciary had given the executive our proposals on the model they prefer as the model of administration, the executive ... did not respond," Zondo said.

This non-response, he said, "has impeded our attempts to get full independence".

The Chief Justice said he and President Cyril Ramaphosa had been scheduled to hold a "preliminary meeting" on the issue on 29 November but this was postponed – at the president's request – to next week Wednesday (13 December). Zondo said it was "very important" that this meeting happen "before the end of the year".

"I have no doubt that if the executive had given this matter proper attention and responded the way they should have responded, we would long have finalised the issue of the court administration model," he said, before adding that the judges' conference felt the issue "should be given urgent attention".

According to Zondo, the executive had also delayed in enabling magistrate's courts, which are those most frequently used courts by ordinary people, to come under the management of the Office of the Chief Justice – a move first proposed by Zondo's predecessor Mogoeng Mogoeng.

"The executive seems not to be keen on allowing magistrates to be moved from the department of justice to be under the Office of the Chief Justice … and there seems to just be unwillingness on the part of the executive to let go," he said.