The Judicial Service Commission (JSC) recently announced a number of appointments to judicial office, as well as elevations to higher courts.
Although this is the first time that the JSC has appointed candidates in terms of criteria that had been made public, the public is really none the wiser about the basis of appointments to an institution which has enormous power to shape the future of our society in dialogue with the other arms of state.
The haze was increased by some rather incoherent ruminations from JSC spokesperson Dumisa Ntsebeza SC concerning the point that qualification alone was insufficient grounds for appointing candidates.
Admittedly, the criteria published by the JSC were designed to give content to two key provisions of the Constitution: s174 (1) which provides that a person must be fit and proper to be appointed to the Bench; and s174 (2) which then insists that the judiciary must broadly reflect the racial and gender composition of South Africa.
Listening to Ntsebeza on e.tv, it appears that these criteria are of equal importance. But how can that be? Surely qualification comes first and, if so, what weight is to be given to the JSC’s so-called supplementary criteria of capacity to give expression to the values of the Constitution and experience in regard to the values and needs of the community?
Moving closer
If these latter considerations formed part of the test for qualification, it is likely that appointments would invariably draw from black and female lawyers which, in turn, would significantly move the institution further along the road to the critical constitutional imperative of being broadly representative of the demography of the country. But, if the JSC regards its three constitutional criteria as of equal and interchangeable importance, then, and based on recent patterns, it can be inferred that race, more than gender, becomes the crucial determinant.
All of this speculative analysis could have been answered by clear public justification by the JSC for its decision to appoint judges in this latest round. We must now try to tease out its reasoning from the appointments made or not made.
The omission of two very fine silks: Ploos Van Amstel SC and Willem Van der Linde SC may lend some credence to the dominant role of race in the selection process.
In the case of Van der Linde, it has been suggested that his erstwhile membership of the Ruiterwag counted against him. But that is somewhat odd, considering that a former member of the adult wing of the Broederbond, Judge Fritz Brand, is a member of the Supreme Court of Appeal (SCA) and is acting as a member of the Constitutional Court. Further, in the recent round of hearings, two other white silks were appointed to the Gauteng High Court. All is not so obvious.
The issue is made more complicated by the appointments to the SCA. If qualification and judicial record were key criteria, then Judges Malcolm Wallis and Ray Zondo would have topped the list, far ahead of the three appointees, Judges Leona Theron, Stevan Majiet and Willy Seriti.
That is not to suggest that these appointees were undeserving. It is to argue that a public justification for the approach adopted might have been helpful, especially since the JSC heard that Judge Seriti was found by his colleagues on the SCA to be unsuitable for a permanent appointment.
‘Fine grasp’
Judge Zondo has almost single handedly built a fine, progressive labour law jurisprudence during his tenure as judge president of the labour courts.
To those who argued that he is but a labour lawyer, the answer is to be found in a careful reading of his judgments, which reveal a fine grasp of general legal principle.
Judge Wallis is widely recognised as one of the most complete lawyers on the Bench — an expert in shipping, labour, company and commercial law — all areas in which the SCA desperately requires judicial expertise.
Even a cursory reading of his judgments shows what a superb jurist the SCA has now lost. And those who would question his commitment to transformative jurisprudence should read his Victoria and Griffiths Mxenge Memorial Lecture.
The omission of Judge Zondo suggests that race may not always be critical, just as the failure to appoint Judge Wallis suggests that qualification and capacity to give expression to the values of the Constitution may play a smaller role in appointment than it appears is mandated by the Constitution.
It has been suggested that deference to the legislature and the executive plays an equally important, if not even more important role, than demography? Without a public justification from the JSC, we will never know.
We also see the limitations of the JSC’s approach to achieving transformation of the judiciary. Beyond its demographic essentialism, there appears to be an underlying yet unarticulated set of assumptions about what a transformed judicial mindset looks like.
Given the recent disquieting remarks by retiring Western Cape High Court Judge Wilfred Thring (about Judge President Hlophe), the Bench clearly needs to spend more time and effort ensuring that the demographic diversity among its members results in a collegial, inclusive and respectfully diverse institution. That would model the vision articulated in the Constitution.