HRWDAR003 CONLAW TUT 5

1A)
Section 174 of the Constitution of the Republic of South Africa provides for the appointment
of judges in the country. The section mandates the Judicial Service Commission (JSC) to
nominate suitable candidates for appointment as judges. The section also sets out the criteria
that the JSC must consider in the appointment of judges.

Section 174(1) of the Constitution outlines the essential qualities for judicial appointments,
including independence, impartiality, fairness, integrity, judicial temperament, and
commitment to constitutional values. These criteria emphasize the importance of
qualifications and character. Hence, the Judicial Service Commission (JSC) must ensure
candidates possess requisite legal qualifications, moral standards, and impartial reputations.

Section 174(2) of the Constitution mandates the JSC to consider transforming the judiciary to
reflect South Africa's racial and gender diversity. Special measures are needed to ensure the
bench mirrors the broader population and addresses discrimination. Additionally,
qualifications, experience, office needs, and managerial skills are important. In Helen
Suzman, the Constitutional Court ruled that the JSC must actively promote diversity,
including appointing women and historically disadvantaged individuals.

When applying the criteria set out in section 174 of the Constitution to the three candidates,
Judge Menzi Mkhonza is the most suitable candidate for appointment as a judge on the
Supreme Court of Appeal. Judge Mkhonza possesses the necessary legal qualifications and
has an impeccable record as an academic and judge. He has demonstrated his ability to
uphold the rule of law, maintain impartiality and integrity, and has a reputation for excellence
in the legal profession.
Furthermore, Judge Mkhonza's appointment will promote diversity in the judiciary, reflecting
the racial composition of South Africa. He is a Black male who has experienced the effects of
apartheid first-hand, and his appointment will promote transformation and redress in the legal
profession. Although he has been criticised for his alleged bias towards the ruling party, he
has denied these allegations, and no evidence has been provided to support them.

In contrast, Advocate Shane Wafer's failure to work with female junior advocates and his
alleged preference for white male junior advocates raise concerns about his commitment to
diversity and transformation in the legal profession. While he has an impressive legal record,
his lack of experience in acting as a judge is a disadvantage.
Professor Thandi Moraka’s appointment could enhance racial and gender representativity.
Yet, her lack of experience outside of academia and her conservative approach to
constitutionalism, which is contrary to transformative constitutionalism, make her a less
suitable candidate. While she is a Black female, her appointment may promote diversity, but
she is not as qualified or does not have as much experience as the other candidates.

1B)

Individuals who were interviewed for a vacant position but not appointed have the right to
legally challenge the JSC decision. They can request access to the reasons for their non-
appointment and the deliberations leading to the decision. This right stems from the
Constitution of the Republic of South Africa, which subjects administrative actions, including
decisions by the JSC, to review by impartial bodies.

In Helen Susman the Constitutional Court stated that if a decision on the appointment or non-
appointment of a judicial candidate is legally contested, the JSC must provide various
documents, including reasons for the decision, interview transcripts, candidate applications,
professional evaluations, and related correspondence.

Therefore, if a candidate not appointed believes the JSC's decision lacked procedural fairness
or provided inadequate reasons, they have grounds for a legal challenge.

2)
According to Section 182(1)(c) of the Constitution, the Public Protector has the power to take
appropriate remedial action. However, the Constitution does not explicitly state whether the
remedial action taken by the Public Protector is always binding. The question of whether the
Public Protector's remedial action is binding was addressed by the Constitutional Court in the
case of Economic Freedom Fighters.

In this case, the Constitutional Court held that the Public Protector's remedial action is
binding only when it is rational and is not set aside by a court of law. The Court emphasized
that the remedial action is not binding simply because it is recommended by the Public
Protector. Instead, the remedial action must be rational, meaning that it must be reasonable,
logical, and proportionate to the maladministration or improper conduct that it seeks to
address. The Court further held that if a court of law sets aside the remedial action, it is no
longer binding.

Therefore, the Public Protector's remedial action is not always binding, and its binding nature
depends on whether it is rational and has not been set aside by a court of law. It is important
to note that the Public Protector plays an important role in promoting accountability and good
governance, and her remedial action should be given due consideration. However, it is
equally important to ensure that her powers are exercised within the limits of the law and the
Constitution.