Judicial Service Commission (South Africa)

[3] Four other judges – Laurie Ackermann, Richard Goldstone, Tholie Madala and Ismail Mahomed – were then appointed by Mandela, in consultation with Chaskalson, from the ranks of the existing Supreme Court.

[3] At that stage the commissioners included many of the country's most respected lawyers, like Chaskalson, Mahomed, George Bizos, Wim Trengove and Etienne Mureinik, to whom the politicians on the JSC usually deferred.

Most famously, Albie Sachs was questioned about his role in a report downplaying the ANC's indefinite detention and solitary confinement of Umkhonto we Sizwe commander Thami Zulu.

The unorthodox appointment of Kate O'Regan, a legal academic aged only 37, proved a masterstroke, for she became, in the view of many, one of South Africa's greatest ever judges.

[12] The other three JSC appointees were John Didcott, a famously liberal High Court judge; Johann Kriegler, also an outlier on the apartheid bench; and Yvonne Mokgoro, a legal academic.

[13] Yacoob, blind since infancy, had been a prominent anti-apartheid lawyer, member of the Natal Indian Congress and ANC, and advisor to the drafters of the South African Constitution.

This became contentious in May 1999, when the South African Rugby Football Union's legal challenge to President Mandela's power to appoint a commission of inquiry into the sport reached the Constitutional Court on appeal.

[14] SARFU's acrimonious, racially charged challenge[15] was led by its head, the "arrogant" and "boorish" Louis Luyt,[16][17] who had locked horns with the ANC in the past.

[14] The likely effect of the recusal would have been that the "astonishing" decision of High Court judge Willem de Villers[19] – who had subpoenaed Mandela and "all but called him a liar", and ultimately found in SARFU's favour[15][20] – would stand.

The JSC had recommended the appointment of Edwin Cameron, considered "the greatest legal mind of his generation",[29] but Ngcobo was ultimately preferred due to the late intercession of Thabo Mbeki, then Deputy President, who felt the appointee should be black.

His administration preserved the high number of commissioners from the opposition,[4] but is thought to have prioritised ANC policy, and candidates' race, in the making of judicial appointments.

[31] For example, the "obscure" Bess Nkabinde was appointed to the Constitutional Court in 2008 ahead of "the obvious candidate", esteemed legal academic Cora Hoexter.

The following year, KwaZulu-Natal High Court judge Chris Nicholson ruled that Mbeki had sought Zuma's prosecution for corruption for political reasons.

[44] Legal academic Pierre de Vos described Ntsebeza and Ndoni as "racial nationalists", noted controversies hanging over Semenya and Soni, and said the appointments were "bad news".

[55] Finally, some thought that Ngcobo, whose term would end just two years later, was merely a "caretaker" Chief Justice pending the accession of John Hlophe, a deeply polarising figure.

But, on 3 June, Zuma announced that he was extending Ngcobo's tenure for a further five years, using the power contained in section 8(a) of the Judges Remuneration and Conditions of Employment Act of 2001.

[72] Ramatlhodi's comments came in the wake of similar criticism of the judiciary by President Zuma, Gwede Mantashe and Blade Nzimande,[73][74] and were supported by Jeff Radebe.

[77] The following year, commentators noted that some commissioners, like Ramatlhodi and Fatima Chohan, had become "fixated" on the separation of powers – a "euphemism" for their preference for judges "who will more likely defer to the executive".

[84] Bellicose JSC members seemed to have selectively attacked Plasket[85] – "improperly castigating" him,[86] using him as a punch-bag "to release some pent-up frustration",[84] and depicting him as opposed to the appointment of black judges despite his well-known anti-apartheid activism.

[84][86] Smuts resigned in protest two days later, citing the JSC's "disturbing" appointment record which "has left a trail of wasted forensic talent in its wake".

[93][94] Paul Hoffman SC sought to have Mogoeng impeached on the basis that he had brought the judiciary into disrepute,[95] but this complaint was itself widely criticised as "ill-considered"[96] and "weak on the law"[97] and was dismissed by the Judicial Conduct Committee.

[101] Several leading commentators, including retired Constitutional Court judge Zak Yacoob and Wits law professor Cathi Albertyn, said that the JSC's appointment criteria needed to be made clearer and more consistent.

[102] Similarly, the National Development Plan 2030, drafted in late 2012 by senior ANC politicians Trevor Manuel and Cyril Ramaphosa, states as one of its goals: "Clear criteria for the appointment of judges must be put in place.

[104] The upshot of the JSC's approach is that it has repeatedly struggled to fill vacancies because insufficient candidates have applied; in the view of many, this is because few are willing to subject themselves to the unfair selection process.

[110] In September 2014, the Helen Suzman Foundation's interlocutory application to have the record of the JSC's deliberations made public was dismissed by the Western Cape High Court.

[99] Nine of the ten parliamentary members of the JSC also departed, including Zuma loyalists Ngoako Ramatlhodi and Fatima Chohan,[113] both strident opponents of "judicial activism".

Commentators were broadly optimistic about these changes[99][113] – albeit that "it was tempting to think" that former ANC Chief Whip Motshekga, who had criticised a 2013 Constitutional Court judgment upholding an opposition MP's challenge to the Rules of Parliament, "may be the kingpin of a political caucus" within the JSC.

[113] By far the most eye-catching newcomer was noted firebrand Julius Malema, the "Commander in Chief" of the Economic Freedom Fighters, whose appointment to the JSC was described by journalists as "shocking" and "jaw-dropping".

[114] Legal analysts questioned whether it was appropriate for Malema, who was facing criminal charges, to be involved in the appointment of judges, but felt that his outspokenness could nevertheless be an asset – provided he avoided political grandstanding.

[125][126] The interviews had seen a reemergence of tensions between the executive and the judiciary, probably as a result of the saga over the government's failure to arrest Omar al-Bashir, which was reflected in the JSC's questions.