JSC thinking leaves us in the dark

The Judicial Service Commission (JSC) has recently conducted hearings and made a number of judicial appointments. Again the spectre of race dominated the hearings. Given the excruciating recent few weeks, it becomes even more necessary to gain clarity on the approach the JSC adopts to appointments.

Section 174 of the Constitution sets out the mandated approach. In the first place a person for judicial office should be a fit and proper person who is appropriately qualified. Then the section provides that the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.

So much for the principle. The devil is in the detail. Where do questions of race and gender fit? In other words, does the JSC need to first deal with the qualifications of a candidate and a determination of whether the candidate is fit and proper before considering questions of race and gender? If so, what criteria are adopted to determine these two requirements?

Briefly, does a candidate’s background, understanding of society, its history and the nature of the constitutional challenges, empathy for the people who will appear as litigants and counsel form part of these qualifications and being fit and proper? It could then be argued that the race and gender of a candidate are important although obviously not determinative factors at the first stage of the inquiry.

These factors, particularly in a race- and gender-divided country like South Africa, may well ensure that such a person brings a perspective to the Bench that makes her or him more qualified than a technically more accomplished lawyer who has little understanding of the constitutional challenges or the problems faced daily by millions of South Africans whose life conditions remain untransformed.

On the other hand, does the JSC test only for technical legal competence and integrity at the first stage and thereafter at stage two deal with race and gender? Or, alternatively, does it say upfront, “only up to, say, 20% of appointments can be whites” and then proceed to deal with issues of qualifications? And what is meant by broadly representative? Surely this cannot mean appointing to fit the exact demographic composition of the country?

It may be that the JSC has answered these questions for itself but, if so, the public is none the wiser. If it has not done so, this would raise disturbing questions about its method of appointment. On the basis of evidence, it is hard to determine its exact approach.

When it compiled its list of seven candidates for the Constitutional Court, demography seemed to be the first-order determination, in that the list consisted of three black men, three women (in apartheid parlance, two African and one coloured—terms employed openly by the JSC in its interviews) and one white man. It may be argued that these were the seven best-qualified persons, although looking at the available list that is seriously debatable.

In any event, race and gender could not have been the only criteria otherwise Judge Dunstan Malambo of the Supreme Court of Appeal and Judge Kathy Satchwell would have made the list and indeed should have on all the criteria set out above.

It gets more curious. On any set of criteria other than race or gender Geoff Budlender SC should have been a judge. Three times the JSC voted him down when he applied to be a member of the Cape High Court. To reject a person of such towering intellect and consistent progressive commitments was truly inexplicable.

Now the JSC has failed to appoint Jeremy Gauntlett SC to the Cape High Court. Gauntlett is no Budlender but he is a most accomplished barrister who would be on any reasonable practitioner’s list of top 10 advocates in this country. In his case what compounds the problem of ascertaining the basis of the decision is that two of the new appointments were white.

So what could be the reasoning of the JSC in this case?

Of all the available candidates he was unquestionably the most qualified and race and gender could not have been the trump in that at least one other white male was appointed, and this in a court that remains out of sync with the broad demography of the country.

More startling is the appointment of only white males to the three available places in the Labour Court. How does this square with the mandate about demography?

Of course, there may be clear reasons that the JSC employed in all of these decisions. Understandably, the JSC cannot publish its reasons for appointment but it can clarify its detailed approach to its constitutional mandate sourced in Section 174 of the Constitution. Then rational debate rather than uninformed speculation could form the basis of a debate about appointments to an institution so critical to the future of constitutional democracy.



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