The Judicial Services Commission this week signalled the end of the old boys’ club on the Bench, writes Mungo Soggot
The judiciary was shaken to its roots this week when the commission which regulates appointments to the Bench selected junior black judges for key posts instead of senior white candidates.
The Judicial Services Commission sent out the strongest signal yet that judges will no longer be promoted on the basis of seniority or experience, and that race will be the most important factor shaping the judiciary.
The Bench is the only branch of government effectively unscathed by South Africa’s negotiated revolution, remaining almost exclusively the preserve of white males.
The commission recommended that President Nelson Mandela appoint Judge Bernard Ngoepe judge president of the Transvaal and Judge Vuka Tshabalala deputy judge president of KwaZulu- Natal. Both men have little experience as judges.
During three days of public interviews in Pretoria this week, commission members questioned the judiciary’s slavish adherence to a hierarchy based on seniority – a defining feature of both the Bar and the Bench.
Commissioners criticised members of the KwaZulu-Natal Bench for their apparent unwillingness to sacrifice promotion according to seniority for the appointment of less experienced black judges.
The commission, which is charged by the Constitution with fashioning a judiciary that reflects the racial make-up of South Africa, adopted a less controversial strategy where the appointment of the Cape’s new judge president was concerned.
It selected Judge Edwin “Sharkie” King, who retires in 18 months, instead of Judge Humphrey Hlope, who has sat on the Cape bench for two years. One of Judge Hlope’s most prominent rulings was to reverse the decision of the National Assembly to suspend Pan African Congress firebrand Patricia de Lille.
The latest round of judicial appointments coincides with a considerable degree of tension between the ANC and the judiciary following the recent watershed judgement by Judge William de Villiers attacking Mandela.
Chief Justice Ismail Mahomed heads the 23-person commission, about half of which is staffed by politicians. Judge Mahomed was flanked this week by Constitutional Court president Arthur Chaskalson and Minister of Justice Dullah Omar.
Judge Tshabalala’s appointment in KwaZulu-Natal concludes one of the ugliest rows to have hit the judiciary since scores of judges effectively tried to block Judge Mahomed’s appointment as chief justice last year.
Fourteen of KwaZulu-Natal’s judges petitioned the commission in April to select Judge Willem Booysen, formerly a member of the Broederbond, as deputy judge president.
They wrote that Judge Tshabalala, appointed to the Ciskei Bench after 29 years at the Bar, would not be able to “command the respect” of the other judges because of his lack of experience. The commission subsequently failed to select either Judge Booysen or Judge Tshabalala after a deadlock over the vote.
Mandela’s office said at the time the petition constituted an attempt “to preserve whatever remains of white domination” in the judiciary – a sentiment effectively echoed by members of the commission.
Two signatories of the petition were interviewed for the post this week – judges Brian Galgut and Jan Hugo. Both conceded the petition was a mistake.
Under cross-examination, both questioned the decision of Judge Jan Combrink to say this week the commission could not claim to be politically independent. Judge Combrink also suggested members of the commission and the press had twisted the words of the petition.
“Speaking personally, I believe the reaction by, notably the political members of the JSC, reflects poorly on the objectivity … with which the commission is supposed to select judges,” Judge Combrink said in the KwaZulu-Natal media.
Judge Galgut gave an ambiguous explanation about the petition which incurred the wrath of the Democratic Party’s Douglas Gibson.
“Would you agree courage and integrity are absolutely essential elements for appointment to high judicial office?” Gibson asked Judge Galgut. “Would you say that you have displayed those in your evidence this morning?” he continued.
“I want to put it to you that you haven’t. At best you have been disingenuous and at worst you have been untruthful. You haven’t had the courage to say that what you wrote in submission to [the commission] was what you believed … The impression is that you have neither the honesty nor the courage to say that is what you believed.”
Judge Booysen was grilled for having been a member of the Broederbond – an institution, he insisted, which was not political.
Although the fight over KwaZulu-Natal has dominated debate on the judiciary for several months, the post of judge president of the Transvaal Provincial Division is regarded in legal circles as far more important.
Judge Ngoepe faces the challenging task of reversing the degeneration of the Johannesburg High Court, which, the commission heard this week, is dilapidated and badly managed.
Judge Ngoepe was appointed to the Pretoria Bench in 1995. Since then he has also worked for the Truth and Reconciliation Commission and had temporary stints on the Constitutional Court and the Supreme Court of Appeal.
The nominees Judge Ngoepe trounced to secure the post included Labour Court head John Myburgh – a widely respected judge who received praise from several commission members for having built from scratch an efficient, representative court.
Even Judge Mahomed noted that Judge Myburgh had been “particularly successful in recruiting black judges to the Labour Court” and asked him to explain how he did it.
Judge Myburgh outlined how he personally sought out candidates – part of a supremely professional performance which seemingly impressed all the members of the commission.
He said he had met with several judges to discuss problems facing the Johannesburg High Court after making himself available for the post.
Judge Myburgh said the judges were demoralised and the court was badly equipped and badly managed. He said there were comparatively few problems at the Pretoria High Court.
Judge Ngoepe said he was not aware of any difference in morale between Johannesburg and Pretoria or of the widespread unhappiness at the Johannesburg court. He said his vision for the division was to “restore its credibility” and “take the court to the people”.
The outgoing Judge President of the Transvaal, Judge Frikkie Eloff, said he was concerned Judge Ngoepe might not have sufficient experience. He said one of the duties of the judge president was to manage the court roster, which meant it was essential the incumbent was familiar with the various competencies of his judges. “All judges are competent. That is why they are there,” replied Judge Ngoepe.
One commissioner, advocate George Bizos, SC, read from a letter drafted by the Pretoria Bar council backing the current Deputy Judge President of the Pretoria High Court, Piet van der Walt, for the position. The body suggested Judge Ngoepe be made deputy to Van der Walt, who was also interviewed this week, with a view to assuming the presidency at a later stage.
Judge Ngoepe said it was difficult to debate the matter because the Bar council had not given reasons. “If, in terms of that letter, to appoint me as judge president is a bold decision, then so be it.”