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Chris Oxtoby, University of Cape Town Judicial Appointments in Post-Apartheid South Africa: Challenges and Regional Solutions

This paper will focus on the experience of judicial appointments in South Africa under post-apartheid Constitutional Democracy. Prior to the introduction of the country’s much-lauded Constitution in the 1990’s, judicial appointments in South Africa were made according to the old Westminister “tap on the shoulder” system of appointment. This system was often criticized for failing to allow for external input, and for delivering an executive minded and demographically unrepresentative judiciary.

The South African Constitution changed this system by establishing a Judicial Service Commission (JSC), which plays a central role in judicial appointments. The JSC was faced with a challenging task. It is given an express Constitutional mandate to take into account the need for the judiciary to be representative of the population in terms of race and gender, against a backdrop of a long history of systemic discrimination and exclusion. It is a body comprising a significant number of politicians, which is charged to make appointments to a judiciary that is charged to uphold and enforce a constitution that vests the courts with extensive powers of judicial review, as well as ensuring the fulfilment of judicially enforceable social and economic rights.  It should therefore not be surprising that the issue of judicial appointments in the post – Constitutional era has been contentious, fraught, and revealing of deeper faultlines in South African society.

This paper will provide an overview of the judicial appointments process in South Africa in the Constitutional era. The paper will draw on the author’s primary research observing the South African JSC’s public interview process between 2009 – 2019, and will discuss some of the major challenges that have arisen, including:

  • The demographic transformation of the judiciary;
  • The criteria for recommending candidates for appointment;
  • The role of politics, including the
  • Interviews, including vetting and dealing with adverse comments.

The aim of the paper is to bring out common themes that may be useful grounds for comparative analyses with other jurisdictions.

The paper will conclude with a brief discussion of the Lilongwe Principles and Guidelines on the Selection and Appointment of Judicial Officers,[1] a southern and eastern African regional best practice document that provides one means of addressing some of the challenges identified in the South African process. The Lilongwe document may also in itself provide an interesting basis for comparative analysis.

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