The Judicial Service Commission has been accused of acting irregularly and with a 'mechanical' and 'legally flawed' understanding of its powers. (David Harrison, M&G)
The Judicial Service Commission (JSC) has been accused of acting irregularly and with a "mechanical" and "legally flawed" understanding of its powers in deciding which judges to recommend to President Jacob Zuma for the Western Cape Bench, according to papers filed in the Western Cape High Court this week.
The commission was also failing to "understand the nature of its discretionary powers" to advise Zuma on judicial appointments at a "systematic level", according to the Helen Suzman Foundation, which filed a notice of motion in Cape Town on Tuesday.
The foundation is asking the high court to review the commission's decision-making process that led to it making recommendations to Zuma for the Bench following its sitting in October last year. It wants the process declared "unlawful and/or irrational" but is not challenging the appointments made.
The foundation is arguing that the commission "misconstrued its powers" as set out by the Constitution after it "elevated" factors of race and gender in a way that "forestalls consideration of other relevant factors" including judicial and administrative ability, impartiality and objectivity. In doing this, the foundation submitted, the commission's actions and decisions were not in keeping with the tenor of the Constitution.
Last year's round of interviews saw the accomplished, but (according to the commission) "acerbic" senior counsel Jeremy Gauntlett again failing to be recommended to Zuma by the commission, despite being deemed "fit and proper" by the commission.
Eight candidates were interviewed for five positions in that round and the president subsequently confirmed all the commission's recommendations, which included lawyers Judith Cloete, Babalwa Mantame, Mokgoatji Dolamo, Owen Rogers and Ashton Schippers.
Concerns and doubts
In a letter to former Supreme Court of Appeal deputy judge president Louis Harms, who had nominated Gauntlett, the commission provided full reasons for its decision not to recommend the silk. These included "concerns and doubts as to whether [Gauntlett] is possessed of humility and judicial temperament" and that the "appointment of two white males [to the Western Cape Bench] would do violence to the provisions of section 174(2) of the Constitution". It appears the latter consideration played a part in the commission only recommending Rogers as the sole white male for a position on that Bench.
Section 174(2) of the Constitution states that "[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed".
It is the commission's "incorrect interpretation" of this section, which leads to a misconstruing of its power, that the foundation questions.
In his founding affidavit, the foundations director, Francis Antonie, states that race and gender are part of a "basket of factors" the commission must consider equally when deciding on who to recommend to the president. It is argued that the "primacy" given to these factors dangerously obviates the need to consider others.
He further suggests that the writers of the Constitution, mindful of South Africa's "unique history" of "discrimination and exclusion", had included this section to be considered for "corrective" and "institutional" purposes, which is not how the commission is currently interpreting it – as "an insuperable impediment" to "advising the appointment of a white and/or male candidate".
A large part of the foundation's argument rests on correspondence between Harms and the commission's secretariat. The commission has been compelled, when asked, to give full reasons for its decisions following a Supreme Court of Appeal ruling after the Western Cape Bar had previously taken it to court over its 2011 decision to leave positions on that Bench vacant rather than appoint white male candidates it had interviewed.
In analysing the correspondence, the foundation is highly critical of the commission's lack of rigour and its failure to consider the many relevant factors it outlines as consideration for suitability to the Bench. These also include "empathy, compassion and knowledge of local communities", a good temperament sensitive to the emotional state of litigants, while retaining a "degree of robustness" when dealing with inept lawyers in court, intellectual integrity and knowledge of the law, which it deemed "vital".
Comparative analysis
In its papers, the foundation submits that a "comparative analysis" of candidates according to these factors and others, including race and gender, is required of the commissioners. But, it noted that, according to the secretariat's letters to Harms, "there is no suggestion that the [commission] engaged in a comparative analysis of the respective strengths and weaknesses of the candidates".
The foundation observes that, according to the reasons given to Harms, which were based on notes collated by Chief Justice Mogoeng Mogoeng during the commission's deliberations, the commission "appears merely to have considered the race and gender of the candidates and the racial and gender composition of the [Western Cape High Court in Cape Town], decided that more than one white male could not be appointed [to that court] and then preferred" Rogers over Gauntlett and Stephen Koen.
Ultimately, Antonie states, the "deciding factor" between Rogers and Gauntlett "appears to have been temperament and humility".
The JSC's perceived failure to consider all relevant material considerations "in a meaningful, comprehensive and comparative manner, tainted the entire decision-making process with unlawfulness and irrationality, thus rendering the decision unlawful and irrational".
The foundation has not asked the court to set aside the appointments and start the process from scratch because of the "potential practical consequences". Rather, the foundation is hoping that "clarity will be obtained in respect of the JSC's methodology in nominating and selecting candidates for judicial office", according to Antonie.
On Thursday morning, JSC spokesperson Dumisa Ntsebeza said that he was unaware of the foundation's application. The commission secretariat's Sello Chiloane said he had not received the papers at the JSC's Johannesburg office. He added that the commission would have to meet and consider the foundation's application before taking any decision on whether to defend the matter.