CHRIS OXTOBY & JUDITH FEBRUARY | The Judicial Service Commission in 2026

The time of year is suddenly upon us when the Judicial Service Commission (JSC) will be interviewing candidates for appointments as judges. As always, this will be a significant event, and there are several issues of interest which will be worth watching.

The steady march of time has illustrated concerns about inaction by the President following the JSC’s last sitting in October 2025. Following these interviews, the JSC was finally able to send a list of candidates to the President, from which he will appoint two Constitutional Court judges.

“Finally”, because the JSC has struggled for years to find enough suitable candidates to fill vacancies on the nation’s highest court, to the extent that the court has not had a full complement of permanent judges since 2016. This is highly problematic. The court is in a crisis as it struggles to deal with its caseload, with delays in handing down judgments at alarming levels.

Having a full complement of judges, without having to over-rely on temporary acting judges, who serve for a short period of time before returning to other courts, would not entirely solve the underlying problems, but would certainly help. The President’s inaction is alarming.

But to turn to next month’s interviews. While the legal community waits with bated breath for Constitutional Court appointments to be made, six candidates will be interviewed for three vacancies on the country’s second-highest court, the Supreme Court of Appeal (SCA).

The JSC’s handling of interviews for the SCA has, in recent years, been controversial. At its October 2023 sitting, the JSC inexplicably only recommended two candidates for appointment to four existing vacancies, overlooking several eminently suitable candidates. Freedom Under Law (FUL) challenged the JSC’s decision, leading to the JSC holding a special sitting to fill the remaining vacancies in mid-2024.

The second part of FUL’s litigation remains ongoing.

FUL seeks to ensure that the JSC further develops its selection criteria and ensures that candidates are properly assessed for compliance with those criteria. The significance of this litigation was illustrated again at the October 2025 sitting, when the JSC was unable to recommend any of the six candidates it interviewed for appointment to a single vacancy.

Again, several of the overlooked candidates appeared to be suitable for appointment. It was reported that the vote deadlocked between two candidates, with neither able to command the required number of votes to command a majority. This does not speak to a deliberation and voting process that allows the JSC to fulfil its constitutional mandate.

With three vacancies now advertised for the April 2026 round, it must be hoped that the JSC will be able to fill these vacancies with suitable candidates. But these travails illustrate the need for the JSC to undertake a re-examination of its deliberation and voting procedures, so that it can make selection decisions more effectively in future.

The issue of shortlisting is also raised by vacancies on the Eastern Cape High Court. Three vacancies were advertised for the October 2025 sitting, but the interviews were then postponed due to unspecified “issues relating to the shortlisting of candidates”. The vacancies have been re-advertised, and 10 candidates shortlisted.

There is no information currently in the public domain to explain what the issue was, but it will make those interviews important to watch. But perhaps the interview that will attract the most public attention is that of current Gauteng Deputy Judge President Aubrey Ledwaba, who is the only candidate for the position of Judge President of the Gauteng High Court.

The position became open when the previous incumbent, Judge Dunstan Mlambo, was appointed as Deputy Chief Justice. His replacement, therefore, has big shoes to fill and a challenging job to do. The Gauteng court is widely regarded as the busiest in the country and is also battling serious caseload challenges.

Judge Ledwaba has been one of the court’s Deputy Judge Presidents since 2013 and, in many ways, is the obvious successor to Mlambo. But his candidacy will be seen as newsworthy because of allegations made at the Madlanga Commission of Inquiry that the judge had been paid a bribe to grant bail to Katiso “KT” Molefe, who had been named as one of the alleged underground figures involved in the capture of the criminal justice system.

Judge Ledwaba has strenuously denied any wrongdoing, and it must be noted that no subsequent evidence appears to have emerged which would suggest wrongdoing on his part. But the issue is sure to receive attention in the JSC interviews, not least because the judiciary is currently experiencing something of an ethical crisis.

Two judges are currently the subject of criminal prosecution. Another two judges have their potential removal from office under consideration by Parliament – if Parliament does vote to remove them, this would mean that as many as four judges have been removed from office since the beginning of 2024. And a series of other troubling allegations have been made against judges.

How does this bear on the JSC interviews?

It highlights the importance of the JSC scrutinising candidates rigorously, to ensure as far as possible that “bad apples” are not appointed to the bench in the first place. The current profusion of serious complaints against judges suggests that the JSC has not been sufficiently vigilant in the past.

There were some encouraging signs in the October 2025 interviews, in that it was noticeable how some commissioners rigorously interrogated candidates over whom there were concerns relating to ethical issues. But the fact that such candidates were shortlisted in the first place, and would invariably have served as acting judges, indicates that there are no grounds for complacency.

The JSC’s controversial shortlisting - for a vacancy on the Constitutional Court – at its previous sitting of a candidate who was under debt review makes this point clear.

The JSC will need to continue to fine-tune its shortlisting procedures to try to ensure that candidates who can’t be appointed are not even considered. Once interviewed, it would only take a majority of votes for a candidate to be appointed – and it is much harder to remove a compromised judge from office than simply not to appoint them in the first place.

So, there will be a lot going on at the JSC interviews, with many undercurrents that are important beyond the immediate candidates and vacancies under consideration. It will, as always, be a highly consequential event.

Judges, as we know, play a crucial role in upholding the rule of law and our Constitution. But as we have seen, the judiciary is taking considerable strain, and it is important that those involved in the judicial selection and appointment do their part to ensure the judiciary is strengthened by the appointment of the best candidates possible.

The JSC interviews take place in the week of 13 – 17 April 2026.