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TOP COURT TALES BY PHILIP SLAYTON A system based on that country's Judicial Service Commission would serve Canada's democracy very well. C anada could learn a thing or two from South Africa when it comes to appointing judges to the highest court in the land. The 11-member Constitutional Court is South Africa's final court of appeal for constitutional matters. There is an elaborate procedure for filling vacancies on the court, with the Judicial Service Commission, a broad-based body established by the 1996 South African Constitution, playing a key role. When there is an empty seat, the JSC calls for nominations and holds public interviews of those nominated. Then it draws up a list of approved candidates that must have at least three names more than the number of appointments to be made. South Africa's president chooses from the list, after consultation with the chief justice and leaders of political parties represented in the National Assembly. This complicated and public selection procedure may, of course, create the proverbial circus. Consider the case of John Hlophe. He is the Judge President of the Western Cape Provincial Division of South Africa's High Court. Among the controversies involving Hlophe (and there have been many), in 2008 he was accused by Constitutional Court judges of trying to influence them on pending cases involving Jacob Zuma (now president of South Africa). The judges made a formal complaint to the JSC, which, to the consternation of many, found in favour of Hlophe. Hlophe and the Constitutional Court have been at daggers drawn ever since. In 2009, with his trademark effrontery, Hlophe arranged to be nominated for 16 NO VEMBER / DECEMBER 2009 www. C ANADIAN Law ye rmag.com L South Africa essons from one of four upcoming vacancies on the Constitutional Court (he was nominated by the Justice for Hlophe Alliance — see www.justiceforhlophealliance.co.za). In September, as a nominee, Hlophe was interviewed by the JSC. During the interview, there was violent disagreement among commission members about what questions could be asked about the candidate's past controversies. As things got more and more heated, the public and media were asked to leave. Those waiting heard muffled shouting coming from inside the meeting room, and what sounded like furniture being thrown around. At the end of it all, Hlophe was not on the JSC shortlist. The media had a field day, and no one's reputation benefited. To many, the nomination and interview process seemed like a joke. YUTA ONODA