CHRIS OXTOBY & JUDITH FEBRUARY | JSC's April 2026 interviews

Last week, the Judicial Service Commission (JSC) held its first sitting of 2026. The JSC recommends the appointment of judges to the superior courts. Except for appointments to the Constitutional Court, where the President has a discretion to select from multiple candidates, the JSC’s recommendations are binding on the President.

Its public interview process is therefore a crucial component of our constitutional democracy.

In previewing these interviews, there were several issues to watch, including whether the JSC would be able to fill vacancies on the Supreme Court of Appeal (SCA) after failing to do so in the previous round; how the interviews for the Eastern Cape High Court would run after they were previously postponed due to “issues” with the shortlisting process; and how the interview of Judge Aubrey Ledwaba, the prospective Judge President of the Gauteng High Court, would play out in light of his decision to grant bail to Katiso 'KT' Molefe being raised at the Madlanga Commission of Inquiry.

The April 2206 interviews, therefore raised a series of significant issues, some attracting public attention far beyond the judicial appointment process. How, then, did the JSC fare?

The JSC was able to fill the SCA vacancies, recommending the appointment of high court judges Thandi Norman, Leonie Windell and Basheer Vally.

All three had been candidates in the October 2025 sitting when the JSC was unable to make an appointment to fill what was then a single vacancy.

This suggests that the JSC’s deliberation and voting processes can handle multiple vacancies, but is liable to encounter problems when several candidates contest a single vacancy. This is an issue that the JSC will need to address to ensure it operates more efficiently in making urgently needed appointments to the superior courts.

Another sign of shortcomings in the commission’s processes was revealed, again, in the Eastern Cape High Court interviews. As we have seen, these could not go ahead at the JSC’s previous sitting because of a shortlisting issue. That in itself is concerning – shortlisting is a hidden but crucial part of the selection process, and the possibility that a serious irregularity occurred does not inspire confidence.

This time, the interviews went ahead. Nine candidates were scheduled to be interviewed for three vacancies. After starting late (another unwelcome and repeated feature of JSC sittings), the JSC had completed three interviews by 2pm, putting it three hours behind schedule, when a short lunch break was announced.

Prior to the break, the Chief Justice indicated that an issue had arisen which required discussion in closed session. After a lengthy break which only served to feed the rumour mill, it was announced that the interviews had been cancelled as the JSC had learnt of a “possible conflict of interest”, and would restart the next day.

The saga raises many questions, not least how it was seemingly possible for the commission to have interviewed three candidates before it was alerted to the potential conflict.

Absent any explanation of the circumstances surrounding the event, this must be seen as an abject failure of the JSC’s internal processes.

There are practical consequences. Candidates had to re-arrange their schedules to be interviewed the following day, and taking an additional day to complete the interviews would inevitably have impacted on public funds. It also resulted in candidates being interviewed on a truncated schedule by commissioners who must, at least towards the end of the sitting, have been exhausted.

Not the ideal circumstances under which to assess candidates’ suitability for judicial office. Sittings that do not start timeously and which stop and start for unknown reasons only serve to increase the (already, sadly, waning) trust that ordinary citizens watching the proceedings have in the JSC and the judiciary.

The exact nature of the conflict has not been made public, and the JSC should account fully for what occurred. It will need to analyse how the situation arose and strengthen its internal processes to prevent a reoccurrence.

As expected, the interview of Judge Ledwaba captivated attention. In an interview lasting over 23/4 hours, Judge Ledwaba faced questions about objections to his candidacy relating to the adverse mention of him at the Madlanga Commission, and his allocation of case management and trial responsibilities to Judge Portia Phahlane, who was subsequently arrested on corruption charges.

An anonymous witness at the Madlanga Commission alleged that a sum of money had been earmarked to secure bail for 'KT' Molefe, although the witness could not state whether the money was intended for the prosecutor or for Judge Ledwaba, who presided over the case. Judge Ledwaba ultimately granted bail.

Judge Phahlane is alleged to have taken money to make favourable rulings in a case relating to a church succession dispute over which she was presiding. Before the JSC, the question arose as to how the case had been allocated to her.

Judge Ledwaba emphasised that he had not had the opportunity to rebut the allegations before the Madlanga Commission, and denied having taken money.

Responding to the suggestion that he should defer his candidacy until the Madlanga Commission concluded, he argued that this would not be in the interests of the Gauteng High Court to be without a leader.

Regarding Judge Phahlane, Judge Ledwaba stated that while it was not the usual practice for the judge who had case managed the matter to subsequently hear the trial, as had happened in that case, the parties had agreed that she should continue to preside over the trial despite having previously case-managed the preparatory stage.

After lengthy deliberations, the JSC opted to recommend Judge Ledwaba’s appointment. Considering the seriousness of the issues raised by the objections, it is not surprising that this decision has been criticised.

Barney Mthombothi accused the “judicial establishment” of having “closed ranks around Ledwaba”, correctly emphasising that it is “imperative that those sitting in judgment of others are beyond reproach” and that “[j]udges should be held to a higher standard.”

The JSC’s decision here was not straightforward so therefore perhaps understandable. However, the Chief Justice did not help by asking leading questions which seemed to favour Judge Ledwaba.

The objections to Judge Ledwaba’s candidacy are grounded in inference. There is no unequivocal allegation, regarding the bail decision, that he was in fact offered or accepted money, nor is there clarity on exactly how he may have acted improperly in allocating the case to Judge Phahlane. There does not appear to be any extant complaint before the JSC against judge Ledwaba regarding either issue.

The JSC is constituted differently for making appointments and dealing with complaints. A complaint will be screened by a committee before, if appropriate, being investigated by a tribunal.

A “small JSC”, excluding the members of parliament, then decides on the complaint. By contrast, as it is constituted for appointment interviews, the JSC does not have the process or the structures to conduct complex fact-finding investigations.

The JSC has improved its handling of objections. Whereas candidates have in the past often been ambushed by objections, the JSC now has an objections committee which filters objections and puts them to candidates systematically.

But Judge Ledwaba’s interview points to a need for the JSC to consider further how it deals with objections to appointments that are based on unresolved allegations, which it is unable to resolve in the interview process.

The JSC may benefit from setting out criteria for determining how such objections are evaluated and when it will be appropriate for candidates to be appointed despite allegations against them not having been finalised. With understandable public concerns about corruption in public life, the more transparency and clarity the JSC can bring to its approach in dealing with these issues, the better.