"Reflecting back" on public participation in the judicial appointment of the South African Chief Justice?

After more than two decades of South Africa's democracy, the significance of the reform of the judiciary is grounded in the process of judicial appointments to restore its public credibility from South Africa's tainted past. Such reform is now constitutionalised through the establishment of the Judicial Services Commission (JSC) which serves as a focal point in the restoration of such confidence in the judiciary. The JSC's processes seek to ensure the rebuilding of public confidence which entails, amongst others the legitimacy of judicial appointments that should be reflective of gender and racial composition as envisaged in the Constitution 1996. However, the public has since weighed heavily on the criteria and discretion exercised by the JSC on its judicial appointment processes. The debates were intensified by President Ramaphosa's unprecedented reform to involve public participation and establishment of the advisory panel in his constitutional role of the nomination process of the Chief Justice. The President opened an opportunity for a pool of eligible candidates to be recommended for his consideration after they were determined and sifted by the advisory panel. The last four candidates were recommended by the panel and after their interviews, the JSC recommended Justice Mandisa Maya as Chief Justice for appointment by the President. Instead, the President appointed Justice Raymond Zondo as Chief Justice and Justice Maya as Deputy Chief Justice which raised debates and questions on the exercise of this constitutional discretion. The purpose of this article and its focus and limitation is to examine the role of public participation and the establishment of the advisory panel in the nomination process of the Chief Justice. It raises questions about whether public participation does not amount to the representative form of democracy in judicial appointments. In addition, it will restore trust, credibility, and confidence and extend the protection of the judiciary from unjustified attacks from the members of the public. In turn, the value of the credibility of the recommendations of the JSC as a constitutional structure in the judicial appointment processes. Therefore, the paper argues that public participation in the nomination of the Chief Justice is an indirect intrusion of the representative form of democracy in judicial appointments. Public participation is also unlikely to make a significant contribution to the protection accorded to the judiciary by the Constitution. If the President could "water down" the JSC's recommendation, there is uncertainty towards the strive for the attainment of transformative ideals of the new democracy.