Several vacancies could pave the way for the appointment of more black judges to the Supreme Court of Appeal
Khadija Magardie
The Supreme Court of Appeal could soon undergo a major shake-up as several vacancies provide the opportunity to significantly alter the composition of an institution long criticised for being too white and too male.
Four posts, currently filled by acting judges, could pave the way for the appointment of more black judges to the country’s top common law court.
But as it has encountered with appointments to other courts, the Judicial Service Commission (JSC), the body that selects the country’s judges, will not have an easy time finding candidates who are politically acceptable and suitably experienced and qualified for the job. There are few white judges in the high court who have appropriate backgrounds for promotion, while senior lawyers say it is common cause that few of the country’s experienced black advocates are making themselves available for judicial office.
The appeal court recently hit the headlines when the African National Congress blasted it for reflecting “embedded racism”. The party official responsible for the comment, national representative Smuts Ngonyama, later denied having made the accusation, but reiterated that there were “perceptions in the community” that the judiciary was racist and biased.
As it stands the court, formerly known as the appellate division, is staffed by 16 white male judges and one temporary black acting judge. A glance at the names and biographies of some of the judges would make the ruling party’s tirades against the court unsurprising.
The ANC believes transformation has left the appeal court relatively unscathed, leaving it well-stocked with apartheid- era “dinosaurs”.
One such presence is that of Judge Joos Hefer, described in a media report as a “vigorous and ingenious defender of emergency authority”. Judge Hefer was a champion of pro- Pretoria legislation during the late 1980s.
Judge Hefer popped out of relative obscurity in 1996 when he called on the now Chief Justice Ismail Mahomed to withdraw from the race to head the appeal court. During his time as chief justice in the Transkei Judge Hefer ruled on numerous cases dealing with emergency law, which granted unchecked powers to security forces to “maintain law and order”. Judge Hefer has nevertheless been hailed as one of the court’s most competent and experienced judges and has presided over some notably progressive judgements – including a landmark case last year in favour of press freedom.
Another controversial judge still sitting in Bloemfontein is Judge Louis Harms, who headed the lacklustre commission of inquiry into apartheid security force hit squads in 1990.
Despite the presence of the highly respected Judge Mahomed in the appeal court since 1996 there have been strikingly few changes – to the court itself – during his tenure as chief justice. Aside from one black acting judge little has happened to promote racial and gender equity in the court.
Some say transformation has been put on ice because of Judge Mahomed’s plans to merge the appeal court and the Constitutional Court, sentiments also alluded to by Minister of Justice and Constitutional Development Penuell Maduna. Talk on the prospects of a merger were squashed in infancy after fierce opposition from both sides. While this has not been forthcoming in terms of concrete plans, officials hinted that a merger of some sort could still be on the cards.
In the next few weeks the JSC will advertise for the posts in question. After receiving nomi-nations and sifting through applications, the interviews will take place in Pretoria in October and the JSC will recommend candidates. According to a JSC representative, the only criterion is that the candidates have to be sitting judges, but there has been speculation that senior black candidates, in particular, will be sought.
According to Professor Gretchen Carpenter of the department of constitutional law at Unisa, the need to transform the court is inevitable, but political tampering would run the risk of appointing inexperienced judges.
The New National Party’s justice portfolio committee member, Sheila Camerer, who is also a member of the JSC, echoed Carpenter’s sentiments.
“One should support the call for the transformation of the Bench, particularly in the case of women, but this should never be at the expense of merit and ability,” she said.
Departmental officials say the transformation of the Bench is a lengthy process, particularly because most of the “old order” judges are extremely experienced. The Director General in the Department of Justice and Constitutional Development, Vusi Pikoli, said the government is “on its way” to ensuring a more representative judiciary. However, he added that the JSC had played a vital role as a vehicle for transformation and that dismissing judges because they were from the “old guard” was not a solution.
“In the past judges paid allegiance to the ruling party. Today they are not being asked to do that but merely to pay allegiance to the Constitution,” said Pikoli.
The government has been criticised for not creating conducive conditions for judges to work under. Most senior lawyers would rather remain at the Bar and earn a higher salary than deal with the lower, perk-free judge’s salary, not to mention the long working hours and often bad conditions, particularly in rural districts. Pikoli acknowledged this, saying there were efforts to create better conditions for judges, particularly their salaries.
He also said the vacancies provided a perfect opportunity to transform the court.
“It will certainly do us no harm to appoint black judges to these positions,” said Pikoli.
He said organisations such as the Black Lawyers’ Association and the National Association of Democratic Lawyers should be doing more to encourage their senior members to think of a career in the judiciary.
According to the Department of Justice and Constitutional Development, in 1999 South Africa had 33 black male judges, four black female judges, eight white female judges and 137 white male judges.