Mungo Soggot
The jurists who select South Africas judges were happy to show their admiration for Judge Edwin Cameron this week as he effortlessly cruised through his interview for a position in the Constitutional Court.
Well, it seems that you were so devastating in your replies that it was a technical knock out, said the Chief Justice, Ismail Mahomed, after Cameron waltzed through the first round of questions.
I think that the fact that no questions are asked shows that some of us know the judge so well that we cannot think what to ask him, gushed advocate Kgomotso Moroka.
The warmth shown by members of the Judicial Services Commission was not surprising, if at times excessively clubby. For many of them probably share the widespread view in legal circles that Cameron a high court judge, eminent practitioner, academic and constitutional law expert is superbly qualified for the job. Even Mahomed, whose massive shoes applicants for the post have to fill, commented that Cameron enjoyed a rare combination of academic writing and practical experience.
However, Cameron raised a stumbling block preventing him from filling a seat on the highest bench in South Africa. He swung his interview to the question of race after saying there were certain considerations which could preclude him. What are those other considerations? asked advocate Marumo Moerane, SC. Cameron replied swiftly and decisively: Race.
He continued: The whole question of representativeness and affirmative action in South Africa is very, very fraught. I think that the easy consensus around it is beginning to break down. I think we will be asking ourselves black or white very difficult questions over the next few years. I dont think there are glib answers. We have to accept that representativeness is very important. And it is particularly important in the Constitutional Court. And the Constitutional Court, in my subjective view, is heavily weighted with white people.
This was the only time race was discussed during the interviews.
The six candidates each took their turn, in alphabetical order, to sit at the head of a packed 30-seater wooden table, across from Mahomed and Constitutional Court president Arthur Chaskalson. The two judges were flanked by Minister of Justice Dullah Omar, advocate George Bizos, SC, and advocate Wim Trengove, SC, while along the sides of the table sat the 25 other lawyers and judges who make up the commission.
Some of the commissioners complained about the size of the commission, which makes it difficult to pursue a line of questioning.
Bizos, however, encountered no such difficulty as he sank his teeth into the next applicant, Professor Charles Dlamini, vice-chancellor of the University of Zululand. Dlamini suffered a drubbing from Bizos, particularly over his role in advising on the KwaZulu-Natal provincial Constitution a secessionist document which was torpedoed by the Constitutional Court in what many believe was one of its finest decisions.
If it was suggested that anyone who had any respect for constitutionalism wouldnt have anything to do with that Constitution, what would your answer be? Bizos asked Dlamini, who pleaded that he had been a mere adviser.
Justice MR Madlanga (35) who was appointed to the high court in the former Transkei last year, had an easier time despite shooting himself at least twice in the foot.
Asked by Mahomed whether, as an advocate, he had undertaken any constitutional cases, he said he had been involved in a matter in 1992 for the Eastern Cape provincial government. Madlanga recalled that he had made some constitutional points in that case all of which he had lost.
Madlanga also delighted the commission by proudly telling Mahomed that he had written his doctoral thesis in the United States on why South Africa did not need a Constitutional Court.
He was frank about the difficulties of being a judge. In criminal matters, I find sentencing quite difficult. In one case I thought the accused was guilty. But then I read the law and my mind was changed completely.
The last on the hustings before the tea break was Dr Silas Ramaite, the deputy attorney general of the North West province and the countrys only black deputy attorney general, who rose through the court ranks in Venda.
Ramaite, who is also considering a position on the Transvaal High Court, was questioned closely by the Transvaal Judge President Frikkie Eloff over how, with no civil practice behind him, he would cope with the variety and pace of work in the high court.
The chair of the Parliamentary Portfolio Committee on Justice, Johnny de Lange, put up his hand to halt Eloffs train of thought. De Lange then asked Ramaite: You can read, I take it? Yes, and you are not scared to go and study and read.
It is what I love most, Ramaite, recognising a lifeline, replied. Is there anything you are scared about? De Lange probed. No, Ramaite confessed.
And then it was the turn of the favourite, Durban advocate Zach Yacoob, SC. Yacoob, who is blind, was led to his seat. But that was the only help he needed. He swept through his interview, picking up hearty approbation in particular for his dazzling memory.
The warm feelings from the Yacoob experience swept over into the next interview, as Professor Jan van der Westhuizen, constitutional human rights expert at the University of Pretoria, acquitted himself with aplomb.
The office of the president, which has the final say over the commissions recommendations, will pick the new judge later this month. It will undoubtedly, as Omar reportedly said this week, strike a balance between ability and representativeness when it makes its choice.
The appointment of Cameron, Yacoob or van der Westhuizen would be welcomed by the advocates who appear in South Africas most formidable court. Their selection would also allow President Nelson Mandela to avoid an argument Richard Nixon used when he selected Harold Carswell for the United States Supreme Court in 1970. Defending Nixons choice, advocate Roman Hruska said of the judge: Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, arent they, and a little chance?