Meetings of the Commission

During the year under review the full Commission met twice, on the following dates:

1. 12 - 14 October 1998 and 

2. 19 - 22 April 1999

The October meeting was held at the Conference Centre of the South African Law Commission in Pretoria and the April meeting at the Waalburg Conference Centre in Cape Town. Average attendance was 95.7%.

Debate on Transformation of the Judiciary

At the first meeting the Commission devoted an entire session to a discus-sion on the formulation of criteria and guidelines for appointment to and the transformation of the higher judiciary. Prof. Milton was asked to record the substance of that discussio n so that the views and approach of the Judicial Service Commission become a matter of public record.

The discussion was introduced by the Chairperson, Chief Justice I Mahomed. Referring to the section 174(1) and (2) of the Constitution the Chief Justice observed:

"Now it seems to me that what flows from these Constitutional directives is the following - that we should always ask three questions:

1. Is the particular applicant an appropriately qualified person?

2. Is he or she a fit and proper per-son and

3. Would it help to reflect the racial and gender composition of South Africa."

In summarising the debate the Chief Justice formulated further supplemen-tary criteria which he said members of the Commission should bear in mind during interviews of potential judges.

They are:

1. Is the proposed appointee a per-son of integrity?

2. Is the proposed appointee a per-son with the necessary energy and motivation?

3. Is the proposed appointee a "com-petent" person? This itself involved two enquiries: Is the can-didate

1. "technically" competent?

2. What is his or her capacity to give expression to the values of the Constitution?

4. Is the proposed appointee an "experienced" person? This also involves other enquiries: Is the proposed appointee

1. "technically" experienced and

2. What experience does he or she have in regard to the val-ues and needs of the commu-nity?

5. Has the proposed appointee appropriate potential?

6. Symbolism. What message is pro-jected to the community at large by a particular appointment?

It was also resolved that a more inten-sive and healthy input was to be encouraged from the professional bodies and that the paper which Prof Milton would prepare should be pub-lished in law journals. It was hoped that this would help to improve the unders tanding of the working of the Judicial Service Commission in the profession.

In assessing the performance of the Judicial Service Commission certain speakers indicated that they believed that there was a perception in the pro-fession particularly that the Commis-sion's performance in selecting per-sons for appointment to the Bench had not enhanced the judiciary. Judge Chaskalson disputed this:

'I must say that I have looked at our law reports, I have been reading them quite carefully. I haven't noticed any-thing.

I haven't noticed any falling standards in the Supreme Court of Appeal which consolidates the Common Law'.

He said that if this kind of gossip was to be allowed to continue the Judicial Service Commission was going to be destroyed from two sides. One group saying that the perception of the pub-lic was that the Bench was a racist white Bench and the other group say-ing that the Bench was an inferior incompetent body of people and that it was no longer reliable. The Minister said the Commission had functioned successfully and it had helped to depoliticise the issue of appointments and other matters relating to the judi-ciary.

Judicial Orientation and Judicial Education.

The Chairperson in introducing this discussion posed the question of whether aspirant judges should be included in the education part of the programme. This issue was debated and in summing up the conclusions reached the Chairperson said that there was agr eement in principle on the following points:

1. Judicial training was to be extend-ed to aspirant judges.

2. A more intensive programme of judicial training was needed and

3. The existing training committee was to prepare a report on train-ing, personnel, courses, the com-ponent of distance learning and the component of collegiate learn-ing. Complaints about Judges

A total of eight complaints were received against sitting Judges and in no instance did the Commission find grounds to recommend the removal of the Judge concerned in terms of section 177 of the Constitution.

Procedure for Complaints about Judges

During the year under review Judge Howard was asked by the Commis-sion to ascertain the views of the Judges President in regard to the pro-cedure that should be adopted when considering complaints about judges.

He, and most of the Judges President were of the view that the primary source of adjudication against judges should be the Judge President. The Minister of Justice also circulated a document which had been drafted by the Department of Justice regarding the possible procedure to be adopted by the Judicial Service Commission for complaints against judges which disclosed legitimate grounds for criti-cism but which did not justify the removal of the relevant judge from office.

It was resolved that Adv de Lange be deputed to join the people who had drafted the working document and to do a comparative international study in order to establish how this issue was dealt with in other countries.

Hoexter Commission

Two aspects of the Hoexter Commission report were debated. The first issue was the split between the Pretoria and Johannesburg divi-sions of the High Court. Discussion also took place regarding the possible demarcation of certain areas whereby Midrand might form part of the Pretoria division and Sandton south-wards might form part of the Johannesburg division. The creation of a regional court of appeal was also discussed.

The other area of controversy dis-cussed was the Eastern Cape. The problem in this area was whether the seat of the court should remain in Grahamstown or move to Bisho. It was resolved that the Minister would call a meeting of all the role players in the Eastern Cape in an attempt to resolve the problem.

Transparency of Proceedings

Adv Trengove had drawn up a mem-orandum which was adopted by the Commission. It was accepted that -

1. The present practice of publishing only names of the short listed can-didates would be continued.

2. All comments received regarding short listed nominees could only be disclosed if reference had been made to them during the public interviews. The Chairperson in consultation with Judge Chaskalson and Adv Trengove would have discretion to release other comments.

3. On being proposed for higher office, existing Judges were to complete a questionnaire which was in the process of being draft-ed by Adv Moerane.

4. Consideration was again to be given to allowing the electronic media to be present during inter-views once the Commission was reconstituted after the elections.

5. Deliberations of the Commission on judicial appointments after the conduct of public interviews were to remain confidential. The Chairperson was to have discre-tionary powers to permit the pres-ence of press and public during deliberations on advice to begiven to the government on other matters.

6. The present practice relating to complaints against judges was to be adhered to. The Judicial Service Commission would not disclose to the public any material pertaining to such complaint unless the relevant judge was found guilty of gross misconduct. It was further agreed that the Commission should retain a dis-cretion in appropriate cases to make such disclosures.

Appointment of members of the Water Tribunal

The Minister of Water Affairs and Forestry had requested that the Judicial Service Commission assist in the appointment of members of the Water Tribunal. The process was initi-ated and a large number of nomina-tions had been received from the ranks of the legal profession as well as from people with knowledge in hydraulics, engineering etc. Because the Commission members had no sci-entific knowledge pertaining to the qualification of prospective candidates in this area and because most of the prospective candidates would be quite unknown to any member of the Commission it was agreed that the Minister be advised that it was impractical for the Commission to deal with the appointment of these members and that the Act should pos-sibly be amended to allow for such appointments to be made without the participation of the Judicial Service Commission

General

The term of office of several of the members had or was due to expire at the end of May 1999. The Chairperson thanked them for their assistance and said that without their help his work on the Commission would have been impossible. The Minister felt that over a period of time the Commission was beginning to develop into a unit consisting of indi-viduals who could rise above narrow constituency interests and who could act in the best interest of the judiciary. Constitutional Court and High Courts

During the year the Commission met on two occasions in order to interview nominees for appointment to the Constitutional Court and to various divisions of the High Courts. Details of the Commission's recommenda-tions in this regard and the dates of appointment which followed are:

• Judge President of Cape of Good Hope Provincial Division
  Mr Justice E L King (01.11.98)
  
  

• Deputy Judge President of Cape of Good Hope Provincial Division
  Mr Justice J M Hlope (18.05.99)
  
  

• Judge President of Transvaal Provincial Division
  Mr Justice B M Ngoepe (01.01.99)
  
  

• Deputy Judge President of Transvaal Provincial Division
  Mr Justice E H Stafford (18.05.99)
  
  

• Deputy Judge President of Natal Provincial Division
  Mr Justice V E M Tshabalala (01.02.99)
  
  

• Constitutional Court
  Mr Justice S S Ngcobo (15.08.99)
  
  

• Transvaal Provincial Division
  Ms Justice T M Masipa (01.12.98)
  Mr Justice N P Willis (10.11.98)
  Mr Justice J van der Westhuizen (01.01.99)
  Mr Justice R M M Zondo (18.05.99)
  
  

• Cape of Good Hope Provincial Division
  Mr Justice A M Motala (01.11.98)
  Ms Justice J Knoll (18.05.99)
  Mr Justice E Moosa (18.05.99)
  
  

• Natal Provincial Division
  Mr Justice B Pillay (01.11.98)
  
  

• Free State Provincial Division
  Mr Justice H M Musi (21.06.99)
  
  

• Ciskei Division
  Mr Justice Z S Peko (18.05.99)
  
  

• Northern Cape Division
  Mr Justice F Kgomo (01.11.98)
  

Finance

The running costs of the Commission for the year under review amounted to R362 710.29. This represents a reduction in expenses of 39.45% com-pared to the previous year. This may be attributed to accommodation and transport costs saved by holding one of the meetings in Pretoria as opposed to Cape Town. (It is, however, not economically efficient to hold meet-ings in Pretoria when Parliament is in session because of the costs of flying many members from Cape Town to Pretoria).

Details of the expenses are as follows: