Isak Smuts SC, a respected member of the JSC, representing the interests of the advocates' profession, resigned from the commission because of the "charade" of interviewing white males for the position of judges when it was clear they would be passed over. He referred to Geoff Budlender and Jeremy Gauntlett for appointments to the bench and Judge Clive Plasket for a position on the Supreme Court of Appeal. In response to Smuts, Chief Justice Mogoeng Mogoeng, who chairs the JSC, denied any "reverse racism" on the part of the JSC.
With emphatic and pungent language, Davis entered the jurisprudential fray, cautioning against a "Eurocentric" view of merit, which he described as an "insult" to black judges in the Mercury of April 12. He said that merit was not simply a question of technical competence, explaining that the approach to merit was that you were either technically brilliant or that you were black. In his own words: "I think that is a damn insult to black and women judges." Davis refers to this "Eurocentric" view as "binary", reminiscent of the London Bar.
Understandably, two prominent members of the London Bar, aggrieved by Davis's statement, responded. Sir Jeffrey Jowell QC and Lord Lester QC said that Davis's description of the modus operandi for appointment of judges in the United Kingdom was an unsupported caricature (letter to the Mercury, April 18).
A battle royal is being waged on the modus operandi of the appointment of judges by the JSC. This discourse should, indeed, occur in a liberal democracy such as South Africa, but it is regrettable that two senior sitting judges, Mogoeng and Davis, are now embroiled in the controversy. In an independent judiciary, judges should avoid such controversy.
Retired Judge Johann Kriegler has indicated that nongovernmental organisation Freedom Under Law, which he chairs, is willing to challenge the JSC's modus operandi, because he considers the commission to be acting in flagrant conflict with the Constitution because its conduct is arbitrary, irrational and manifestly unfair.
If this is done and such a challenge was to come before either the Western Cape High Court or the Constitutional Court, Judges Davis and Mogoeng would find themselves in an untenable situation. They would be obliged to recuse themselves because they would, by their intemperate public utterances, have manifestly prejudged the matter. – George Devenish, Durban