MADLANGA J
or perceived independence unnecessary. Put differently, the fact that it is generally
expected and accepted that Judges act independently, impartially and fairly, without
bias or prejudice did not stand in the way of this Court considering the independence
challenge in relation to the office of Chief Justice.
[91]
Judges are appointed by the President after a constitutionally prescribed process
of consultation which differs according to the judicial office applied for.131 In terms of
section 174(3) of the Constitution, the JSC must also be consulted.132 In practical terms,
the JSC is able to participate meaningfully in that consultation process by subjecting
candidates for appointment as Judges to an interview process. Needless to say, the
object of the interviews is to determine whether candidates are suitable for the judicial
office applied for. The interview process is rigorous and public. Acting Judges of the
Constitutional Court are appointed by the President on the recommendation of the
Minister of Justice, acting with the concurrence of the Chief Justice.133 And acting
Judges of other courts are appointed by the Minister of Justice after consulting the senior
Judge of the relevant court.134
The criteria for selection of Judges are publicly
accessible.135 And once appointed, Judges’ terms of office are strictly regulated.136
Court hearings are almost exclusively conducted in open court, and reasons for Judges’
decisions are largely accessible. If dissatisfied with the outcome, parties can generally
appeal or seek the review of a decision. These processes allow for public scrutiny,
accountability and public trust.
[92]
None of these protective processes and structures are in place for the designated
Judge under RICA. At present, the designated Judge is appointed by the Minister of
131
Section 174 of the Constitution.
132
See also Justice Alliance above n 129 at para 77.
133
Section 175(1) of the Constitution.
134
Section 175(2) of the Constitution.
135
Cowen above n 124 at 148-9.
In terms of section 176 of the Constitution “[a] Constitutional Court judge holds office for a non-renewable
term of 12 years”. Other Judges hold office until they are discharged from active service in terms of the Judges’
Remuneration and Conditions of Employment Act 47 of 2001, which limits a Judge’s term to 15 years, subject to
certain conditions and exceptions.
136
52