As expected, the recent hearings of the Judicial Service Commission again cast the spotlight on the criteria for judicial appointment.
In particular, demography was raised by prominent members of the commission as the crucial consideration, the present composition of the judiciary being skewed in favour of minority groups. To put it bluntly: despite the majority of judges being black, there are far too many white judges.
Chief Justice Mogoeng Mogoeng was reported as saying that even though there were too few women judges, an equal if not greater concern was the failure to have a judiciary that, in the words of section 174(2) of the Constitution, was broadly reflective of South Africa's racial composition.
There should be no doubting the importance of this constitutional requirement, even if the word "broadly" means the process is not to be equated with racial bean-counting. But what about jurisprudential transformation of the Bench? This moves the appointment inquiry into more nuanced territory and, arguably, for this reason it hardly received a mention at the recent hearings.
The importance of this component is highlighted in a recent decision of the Supreme Court of Appeal in a case involving the BoE Trust, which was appointed as trustee of a testamentary trust set up by a Mrs De Villiers in honour of her late husband. The trust's objective was to grant bursaries to white students with an MSc in organic chemistry who wished to pursue doctorate studies in the field. The universities that would have received the money for deserving applicants refused it because of this racially exclusive arrangement.
The will provided for an alternative: if it proved impossible to implement the bursary scheme, the money had to be paid to designated charities. The trustees decided, however, to approach the court for an order deleting "white" from the applicable clause, which would have allowed them to implement the bursary.
Fundamental constitutional values
Having been unsuccessful in the high court, the trustees appealed to the Supreme Court of Appeal, which framed the inquiry as whether it could interpret the will so that it did not offend public policy. It followed that the court had to ask whether conditions contained in a will could be struck down if they contravened fundamental constitutional values. This, in turn, required careful consideration of the relationship between freedom of testation (the power of a testator to deal with her property as he or she desires) and constitutional values counter to the wishes of the testator.
Sadly, the judgment totally failed this challenge. In a perfunctory few pages, the court invoked the right to property enshrined in section 25 of the Constitution to hold that, if the court interfered with Mrs De Villiers's exercise of her freedom of testation, it would infringe on her right to property. Warming to this theme, the court, without any attempt to weigh the competing considerations, held that to delete the word "white" would be a failure to recognise freedom of testation, which, in turn, would "fly in the face of the founding constitutional value of human dignity".
The trustees had invoked an earlier appeal court decision that struck down a testamentary trust establishing a university-administered bursary programme that restricted potential bursars along racial lines. Wisely, the court held that this provision was discriminatory and in conflict with public policy, because it transgressed the equality provision of the Constitution.
Somehow, the court in the BoE case distinguished this case on the basis that, in BoE, the testator had provided for alternative bequests if the bursary provision could not be implemented. The problem with this move is that a provision establishing bursaries for whites only is either contrary to public policy or it is not. A provision for an alternative use of the testamentary funds should make no difference if public policy in the constitutional era rejects a whites-only bursary given to public institutions like universities.
The case raises a legitimate and important debate about the scope for private choice and, in particular, whether that freedom extends to financial provisioning in the public domain. In other words, there may be a difference between bequests to individuals chosen by a testator on whatever terms the testator so decides and bequests with public consequences, as would be the case with scholarships to universities. But none of this was even discussed by the appeal court, nor was the key question of the effect of the Constitution on private power. Instead, racial bequests now appear to be sanctioned in an almost uncritical manner.
The judgment in this case reveals the importance of a Bench that is both sensitive to difficult questions in which race is relevant and the more general challenges posed by our Constitution for the transformation of our society. That the commission so seldom raises these issues with candidates for judicial office is a great cause for concern, particularly if our jurisprudence is to move beyond the myopia exhibited in this case.