More than 30 vacancies for judges, including five posts for judge presidents, will need to be filled by April, but the controversy following justice minister Jeff Radebe's appointment of Mokotedi Mpshe as an acting judge has cast a cloud over the process.
This is the largest number of appointments that the Judicial Service Commission (JSC) will have to make at a single sitting, but with the deadline for nominations already extended once, there are fears it will be hard-pressed to find suitably qualified candidates.
Radebe appointed Mpshe, former National Prosecuting Authority (NPA) chief, as an acting judge of the North West high court in Mafikeng.
Though Mpshe has been "temporarily detached" from the NPA without pay for his six-month stint on the bench, the appointment raises questions about the constitutional principle of the separation of powers, on the grounds that a civil servant should not be an acting judge.
The General Council of the Bar of SA and the Law Society of SA have called for the appointment to be suspended and the matter to be referred to the JSC for consideration.
Mokotedi Mpshe - Let Zuma off hook
As acting head of the NPA, Mpshe took the decision to drop all corruption and fraud charges against President Jacob Zuma and Radebe's active involvement in getting him appointed to the bench is seen by many as a reward.
Mpshe's appointment came in the week that the JSC announced that the deadline for nominations for 30 vacancies on the bench had been extended for almost two weeks amid reports that there was a dearth of suitable applicants.
Legal commentators say it is not unsurprising that well qualified people from the profession have not made themselves available for the bench, given the JSC's handling of the interview and appointment process over the past few years.
Though SA's constitution provides for the transformation of the judiciary, there has been growing concern that by focusing more on race and gender than on experience, legal competence and qualifications, the JSC may have seriously compromised the quality of the bench.
"It is clear that many senior advocates and attorneys are not inclined to make themselves available [for the bench]. They prefer to stay in their lucrative private practices and they don't want to be branded as second-raters," says Paul Hoffman, director of the Institute for Accountability in Southern Africa and a senior advocate at the Cape bar.
Hoffman says the interviews for some vacancies over the past year or so have come across more as a "cadre deployment" by the ruling party.
"The legitimacy of the bench is being undermined by populating it with people whose experience, objectivity and lack of bias is questionable," says Hoffman.
"The appointment of Mpshe is the most egregious example of this tendency."
Often, the line of questioning by the JSC has little to do with establishing the competence and suitability of candidates.
For example, last July a senior Pretoria advocate, Hennie de Vos, was asked to apologise to the JSC for having belonged to the Conservative Party and for defending apartheid-era perpetrators.
Eastern Cape senior counsel Torquil Paterson faced a barrage of questions over his decision to leave the priesthood because he had concluded that God did not exist. He also came under attack for not being a member of Advocates for Transformation.
"There is a sense that some applicants have been badgered, which makes it less likely that quality candidates will apply," says Anthea Jeffery of the SA Institute of Race Relations. "Political affiliation ought to be irrelevant and judges must simply show that they can be fair and have the ability to interpret the constitution and to ensure that the values of the constitution permeate all law."
Jeffery says the large number of vacancies on the bench will enable the Zuma administration to put its stamp on the judiciary.
Ranking the Analysts 2009
