Commentators on the judiciary and presidency regularly rely on the reassuring expression that our Constitution “is the most progressive in the world”.
Unquestionably, this is true of the Bill of Rights in the Constitution, but it is wrong to conflate the Bill with the Constitution as a whole. There are several aspects relating to the determination of presidential, judicial and parliamentary office that need constitutional revision. Time has marched on.
The extension of the term of office of the chief justice has been controversial. It is unfortunate that the deliberation of lawyers is required. The manner of appointment to such an important office and the term thereof should be easily understood and generally accepted by all.
The problem arose because it was generally accepted that, in the early years of the existence of the Constitutional Court, its appointments would have to be made from outside the ranks of existing judges, who were pale, male and conservative.
There was a series of legally convoluted measures trying to straddle two unruly horses at the same time: first, the need to be fair to those on the Constitutional Court bench who had been appointed from outside the ranks of judges, and, second, the “new blood” principle that no one should have undue influence on the court by serving for too long.
For many years now, all appointments to the Constitutional Court have been made from the ranks of the existing judiciary. The problem currently focused on the chief justice can easily go away by making the appointment and the terms of office of Constitutional Court judges, in future, the same as those applying in the Supreme Court of Appeal.
In recent years, the Judicial Service Commission has often found itself in a pickle. Its role in terms of the Constitution should be clear enough: to ensure an independent, highly qualified judiciary that is not packed with the usual suspects, white males. The simplicity of the mandate has become confused because the commission has displayed little actuarial sense — an awareness of the mathematics of time.
This deficiency of actuarial sense is surprising. Even the “ambulance-chasers” among lawyers have to deal regularly with actuarial calculations. The evidence is now brutally clear that an awareness of the mathematics of time is what distinguishes successful societies from failed ones.
In all Commonwealth countries there has, for centuries, been an aversion to a “career judiciary” (where, after university, one progresses from adjudicating cases of chicken theft in back yards to higher things through a process of examination). The experience in the Commonwealth is that if one wants good, independent judges, it is best to start looking from among the ranks of those who have been successful practitioners for about 20 years.
Once this requirement has been met, one can start to look for other attributes. As a rule of thumb, judges should rarely be appointed much under 45 years of age. Judges have security of tenure and are well looked after in their old age. The state is entitled to expect that it will get its “pound of flesh” from the years of service of those on the bench. It does not make actuarial sense to appoint those who are much over 55 years old.
The risk of bad appointments to apex courts such as the appeal court and the Constitutional Court would be decreased by the insistence that, to be eligible, one should have had a distinguished career as a high-court judge for at least eight but preferably 10 years. This also avoids the risk of anyone serving for too long in these apex courts. No one should be appointed as a head of court without having at least 13 and preferably 15 years of service on the bench.
This avoids the risks of anyone holding such powerful office for too long. Remember that women hold up more than half the world and that black people constitute more than 80% of the South African population. Education and opportunity are rapidly changing the gender and racial composition of the legal profession.
Time is the great healer and mender of wrongs. Much embarrassment could have been avoided if these simple, time-related guidelines had been followed scrupulously.
Nigel Willis is a judge in the South Gauteng High Court.