A few years ago, I attended a lecture by a Canadian constitutional lawyer, David Beatty. Briefly, his thesis was that the most important task for a judge in a constitutional state was to balance the rights guaranteed in the Constitution with the provision that such rights may be limited by government action.
In short, the task of judges was to insist that limitations of constitutional rights be properly justified. I was reminded of the importance of this idea, as a result of the current spate of challenges to the election. If judges cannot promote a jurisprudence of justifiable balancing between rights and government acts which purport to limit those rights, the Constitution will either wither or be changed by an exasperated government.
Beatty suggested that the solution to the problem lay in the election of judges who could understand this imperative. In South Africa, the matter has been complicated by the quite legitimate need to ensure that the judiciary reflects the demography of the country. But this need is not always compatible with the Beatty thesis. There is no guarantee that all black judges will strike the constitutional balance, just as there is no certainty that all white judges will get it wrong.
It is for this reason, that the Judicial Service Commission has such a difficult task. Should it appoint people who, politically and jurisprudentially, are unwilling to promote the principle of constitutional justification, it will have seriously weakened the constitutional idea; and this must be its most important consideration. Next month it will be so charged. The commission meets to select a new group of judges.
In Johannesburg, it has two outstanding candidates, alas, for one post. Judge Ray Zondo has proved to be one of the successes of the Labour Court and will grace any Bench. But he appears to need the appointment so that he can be the next president of the Labour Court – a need necessitated by the silly provision that the president of the court must be a high court judge, and Zondo, as an ordinary Labour Court judge, does not hold such office.
Had all labour judges been high court judges, the need would have not arrived, and the second outstanding candidate for office in Johannesburg, Carol Lewis, could easily have been appointed. To have two applicants who meet the Beatty test is a real luxury in this country – the answer is to change the law, make Labour Court judges members of the high court, appoint Zondo as president of the Labour Court and Lewis as a judge of the high court. In any event, as a woman, Lewis is part of the most under-represented group on the judiciary.
Down in Cape Town, the position is much more complex. The only black candidate is Essa Moosa, long-time activist and friend of Minister of Justice Dullah Omar.
As much as he has political credentials, the rumour from the Cape Bar is that he is patently not up to the task. If this is indeed the case, then he should not be appointed.
The Judicial Service Commission should have the courage not to make appointments which can only weaken the constitutional enterprise.
The fact that Moosa is the only black nominee in the Western Cape is deeply disturbing: why will the silks like Louis Skweyiya and Marumo Moerane not take appointments and why is no search being conducted to ensure that talented black lawyers, even if less experienced, be nominated? Until this is done, no appointment should be made.
The most interesting selection will be for the Constitutional Court. Here the Judicial Service Commission recommends four candidates to the president and he must appoint one. The choice is between arguably the most brilliant lawyer on the Bench and certainly the most progressive, Judge Edwin Cameron, and Judge Sandile Ncgobo, who has been one of the great successes of the new appointments, and has also proved to be an excellent judicial administrator as acting president of the Labour Court.
That the court needs another fine black judge is obvious; that we can ill-afford not to have Judge Cameron on the court is equally clear. Perhaps the solution is to retain Judge Ncgobo as president of the Labour Court (even ahead of Judge Zondo), or make him a member of the presently all-white, male (save for the chief justice) permanent staff of the Supreme Court of Appeal. This may ensure that the progressive brilliance of Judge Cameron can bolster the rather staid jurisprudence of the Constitutional Court.
We shall wait and see. Whatever the Judicial Service Commission does, it should remember that appointing judges who are committed to getting the constitutional balance wrong, whether because of absence of talent or ideology, is to bequeath an unfortunate legacy to the nation.