Over the past months this column has devoted space to the analysis of the way in which the Constitutional Court and the Supreme Court of Appeal have responded to the challenge of developing the body of South African law in the image of the Constitution.
In this regard, judicial appointments become critical. Of the recent batch, the most interesting are the appointments of Judge Belinda van Heerden to the Appeal Court, over Judge John Motata; and Daniel Dlodlo to the Cape High Court, over Geoffrey Budlender.
Both are excellent appointments. Judge van Heerden, from an examination of the law reports, has proved to be both prolific and bold in the manner in which she has developed the law. She will reinforce the progressive wing of the Appeal Court and assist in the development of constitutionally compatible common law. From all reports, Judge Dlodlo will prove a significant addition to the Cape court and will contribute to the overall transformation of that Bench.
Thus, the appointments of Judge Van Heerden and Judge Dlodlo point to progress on the part of the Judicial Service Commission (JSC) in building an excellent, representative judiciary.
But doubts must still remain about the coherence of the overall strategy of the JSC. That the commission recommended Judge Dlodlo over Budlender is understandable. But could no place have also been found for Budlender, an outstanding lawyer who made a consistently important contribution to the use of law as a means to effect social change during the last two decades of apartheid?
Ironically, numerous conservative white men without any history of commitment to social change, nor any vision of legal transformation, have over the past couple of years been appointed to a number of high courts, the Appeal Court and the Constitutional Court. Surely something must be wrong in the overall appointment process? Can the system not be sufficiently flexible to accommodate an exceptional candidate rather than risk losing him or her to the Bench?
For me, the essential fault lies in the absence of any meaningful debate about the nature and scope of transformation. As the Constitution dictates, race and gender must remain critical factors in the appointment process. But while they are necessary conditions, are they sufficient? From newspaper reports of the Budlender interview, questions were asked as to how a white man could expect appointment in these circumstances.
If this questioning was accurately reported, and the purpose was not to initiate debate but to declare the exclusion of progressive whites, it is disgraceful. Would Braam Fischer also have suffered this line of questioning?
The exclusivist race approach overlooks the possibility that there may well be some white men — admittedly a few — who understand the imperative for change and possess the necessary commitment to the concept of social justice promised in the Constitution.
If this country is to build the kind of non-racial, constitutional society to which the nation committed itself a decade ago, it must be required of judicial appointees that they possess a vision of how the law can promote the dignity, equality and freedom of all who live in this country. It is unlikely that were the necessary conditions of race and gender coupled with a coherent examination of a candidate’s constitutional vision, demographic change would not continue as speedily.
It would be conservative white men who have benefited greatly in the past few years and, yes, the odd black or woman judge whose legal philosophy is sadly out of kilter with the constitutional vision of our society who may not be appointed.
The JSC has produced no public document and has not asked candidates a consistent line of questions to indicate that it possesses a clear set of guidelines to achieve principled balance in appointments.
Most worrying is a suspicion that the JSC follows the dominant discourse of building a grand bourgeoisie at the expense of the majority of the nation. It behoves the JSC to resist the course of large businesses whose conception of black economic empowerment is to bolster a black strategic presence to the advantage of a small black group possessed of enormous wealth, but without any significant benefit for economic growth and, more importantly, any meaningful extension of economic citizenship to millions of previously, and currently, disadvantaged South Africans.
The JSC is tasked with the creation of a representative judiciary that can breathe life into the constitutional text and thereby extend social justice and fairness to all in this country. That is a subtle and complex task, the essentials of which should be debated openly.