ETD: Analysis of the impact the judicial service commission has on judicial legitimacy in South Africa through the appointment and accountability processes

Maujean, Genevieve

ETD: Analysis of the impact the judicial service commission has on judicial legitimacy in South Africa through the appointment and accountability processes

Thesis / Dissertation

2024

Abstract

Since the advent of the 1994 Constitution, an independent judiciary has been a vital component in upholding constitutional democracy in South Africa. Along with the Constitution came new ways of appointing judges and holding them accountable. This is done by the Judicial Service Commission (JSC). The appointment and accountability processes are both contentious topics in South Africa with much debate being had about the processes selected. The importance of how these processes are undertaken is high due to the influence they have on the perception of the judiciary, and consequently judicial legitimacy. Once judges are appointed through the interview process, they are expected to make their decisions without any outside influence, and if they fail to abide by the judicial standard expected of them, they are required to be held accountable for this misconduct. Judicial independence and accountability play a central role in these processes as well as judicial legitimacy and will have a lot of attention placed on them throughout the discussion. With little up-to-date literature addressing this topic in South Africa, this thesis provides a discussion of what the current status is of these processes and how they impact on the legitimacy of the judiciary. This thesis proposes that the accountability process requires more extensive alterations than the appointment process, however both require more political will of the JSC members in order for them to positively impact on the legitimacy of the judiciary. By drawing on case studies and the processes adopted in Zimbabwe, Kenya and India, this thesis recommends a variety of reforms that aim at improving the way these processes are undertaken by the JSC.