The past two weeks have focused attention on the failure of our political system to resolve political disputes and a consequent rush to litigation.
Courts are now the default forum for all forms of conflict – e-tolling, motions of no confidence in the president, even ANC internal voting procedures in the Free State. Of these three disputes, only the motion of no confidence brouhaha has been decided. The reaction to the judgment of the Western Cape High Court is illustrative of the dangers inherent in all this litigation.
The application to order the speaker of the National Assembly to conduct a debate on a motion of no confidence in President Jacob Zuma was dismissed by Judge Dennis Davis on the basis that a court could not arrange the precise timetables for Parliament. Even though the judge upheld the Democratic Alliance's right to demand a debate and the consequent obligation of the assembly to ensure that it takes place on an urgent basis, he was excoriated in the press by prominent DA supporters. The claim, almost certainly in contempt of court, was that he found against the DA because in this way he could ease his way to promotion to the Constitutional Court.
Once courts are drawn into political terrain, judges become a target of the kind of unbridled criticism that is typically the product of party-political rivalry. The ANC's usual refrain in these cases is to refer to judges as "counter-revolutionary" or "untransformed"; DA supporters appear to prefer to accuse judges of naked ambition instead of adherence to legal principle.
As a result, the judiciary is weakened as an institution, either because judges retreat from bold judgments to preserve what is left of their institution, or because the public loses confidence in the impartiality of the decisions of the courts.
It is in this fraught context that a new Constitutional Court judge must be appointed to replace Justice Zac Yacoob. The demand is surely for a judge like Yacoob: brave, creative, committed to the transformation of the legal system, possessed of stature both because of his skill as a jurist and for his record of commitment to the struggle for freedom and equality in the country and, above all, a judge possessed of an adjudicative philosophy that can help the Constitutional Court to negotiate the perilous seas of political conflict.
Worthy of appointment
Sadly, the list of those who have sought appointment is most unimpressive, particularly when judged against this test. The five nominees are Judges Ronnie Bosielo, Brian Spilg and Selby Baqwa and advocates Mbuyiseli Madlanga SC and Jeremy Gauntlett SC.
Spilg has been on the Bench for no more than three years, has not written any judgment of serious and lasting jurisprudential consequence and was recently heavily criticised for the highly inappropriate handling of a trial. Baqwa, although a previous public protector, has been a judge for about six months – hardly sufficient time to assess his talent for the highest court in the land.
Only the two advocates, both outstanding, meet the test for consideration, let alone appointment.
The Judicial Service Commission (JSC) is obliged to provide the president with the names of four candidates it considers deserving. In this situation it surely must consider, as it has in the past, readvertising the posts to ensure four candidates who are truly worthy of appointment.
This challenge is compounded by the stunning absence of even one woman on the list of nominees. Adile Hassim ("A few good women needed", November 30) compellingly raised the problem of an absence of gender balance on the appointment agenda to the Constitutional Court – and the JSC must surely attend to this issue.
Simply expressed, there are female jurists who, on any rational basis, can only be better candidates than those on the present list of nominees. They must be encouraged to stand.
To be fair to the JSC, it has nominated Judges Mandisa Maya (twice) and Leonie Theron, only for the president to honour the commitment to gender equality in the breach. In the past two rounds of nominations, the president could have appointed three women, but only Judge Sisi Khampepe got the nod.
Let us assume that somehow the president and his advisers thought the male nominees were technically better jurists (which is not correct, but let us give them the benefit of the doubt). Then why do "demographic" considerations only apply to race and not gender?
It is arguably the lip service paid to gender that may have deterred women from applying for the present post. Over the past few years, apart from Theron and Maya, Judge Kathy Satchwell and professors Cora Hoexter, Penny Andrews and Cathi Albertyn have applied without success.
The present absence is a stunning rebuke to the way gender has been ignored – and, consequently, this serious talent spurned. The JSC should look at the present situation and conclude that it cannot, on this list, provide four names of people who can meet the challenges faced by the Constitutional Court.
Furthermore, it cannot allow gender to be ignored any longer. Civil society may also want to have its voice heard; after all, as eminent as Gauntlett is, there are others equally, if not more, worthy. Is it not time that the debate for appointment transcends the case of one individual?