Judges matter. Judging the judges is thus of importance.
This is, of course, the reason why many people have been getting so anxious about Chief Justice Mogoeng Mogoeng’s utterances about law and religion. Judges not only have the power to decide the fate of those who appear before them accused of a crime, but their statements are accorded a special heft due to their position in our society.
Rebecca Davis wrote in 2014 “South African judges sometimes reveal themselves to be deeply fallible. It’s one reason why we should all keep a beady eye on who gets appointed to the judiciary”
Judicial Service Commission
The proceedings of the Judicial Service Commission often don’t get as much media attention as they should, considering that the JSC is the body tasked with the hugely significant job of selecting South Africa’s judges.
On some occasions, the JSC seems to simply fail to do “due diligence” on the shortlisted candidates. For instance, shortlisted nominees who have served as magistrates, acting judges or judges previously only have to submit a number of their previous judgments to the JSC. It’s thus natural that they put their most impressive foot forward. There is no database which allows you to access all past decisions in one place.
There is evidence to suggest that South African judges sometimes use shockingly misplaced language in their rulings on the matter of rape. One of the JSC’s shortlisted candidates had written a judgment describing a rape complainant as a “gold-digger”. Because judges are supposed to tell us “what really happened”, and we trust them to do so, their personal bias can easily masquerade as objective fact. In this way, judges can effectively play a very destructive role in perpetuating myths about rape.
Sentencing also offers a glimpse into a judge’s views on these matters. South African judges are given discretion when it comes to imposing sentences, but there is a minimum sentencing framework which they are supposed to adhere to. Perhaps one of the factors the JSC should be paying more attention to is aspirant judges’ perspectives on gender issues, potentially using rape judgments as an assessment tool.
The performance of judges, i.e. judging the judges, and magistrates should somehow be recorded and measured, possibly through the establishment of some sort of database. The appointment process for magistrates, which is shrouded in mystery, should also be rendered more transparent.