serjeant at the bar In October this year the Judicial Service Commission (JSC) will consider candidates for the largest number of vacancies for judicial office that that body has been required to appoint. For this reason, its decisions will have a major effect on the nature of an institution that remains predominantly white and male. The magnitude of the nominations, which closed last month, illustrate the importance of the meeting. There are, among other appointments to be made, 11 vacancies in Gauteng, four for the Supreme Court of Appeal, two for judge president and one for deputy judge president. Some of these involve intriguing contests. A number of judges have been nominated for the four positions on the appeal court, including those who have held acting appointments recently and with distinction – Ian Farlam, Lionel Melunsky, Lex Mpati and Russell Madlanga. Of the balance of the nominees, four catch the eye. Judges Edwin Cameron, Mohamed Navsa and Robert Nugent are widely admired as being among the very best judges in this country, all critically capable of moving the Supreme Court of Appeal into the constitutional era. The only woman who has been nominated is Judge Lucy Mailula. Not only was it considered among many in Johannesburg that she was unfairly criticised by the Bar Council when she was nominated for a position on the Competition Appeal Court, but the appeal court is at present an all-male institution. An African woman who has been a judge for some years can only help to break stereotypes on that court. The JSC will accordingly be confronted by the constitutional imperative of taking important account of race and gender. The further intriguing question arises on the transformation of the law. If this is truly an important factor, then it will be difficult to ignore the claims of judges Cameron, Navsa and Nugent, notwithstanding that the JSC has traditionally required candidates to act in a court before being appointed permanently to that court. Other contests will also test the approach of the JSC. In the Free State, Judge Fikile Bam, the president of the Land Claims Court, is up against Surita Snyders, a judge from Gauteng. The prize is the judge president of the Free State High Court. Judge Bam has already presided over a court and has a long career in progressive politics, for which he was imprisoned on Robben Island. He also spent many years as a lawyer at the Legal Resources Centre. Judge Snyders has built up a reputation as a very competent judge. If appointed, she would be the first woman to hold such office, and that must count in her favour.
The same considerations hold down in Cape Town. There, Judge Siraj Desai is contesting the position of deputy judge president against Judge Jeanette Traverso. Judge Desai is well known in the Cape community for a long history of involvement in struggle politics. Cape demography and his own commitment to societal change are important considerations. Judge Traverso is the senior woman judge in the country. She had a busy silk practice before taking an appointment as a judge and some observers have been surprised that, with her record and ability, she has not yet acted at the Supreme Court of Appeal.
In KwaZulu-Natal the contest is perhaps easier. The position of judge president remains vacant. Judge Vuka Tshabalala, who must hold the record for JSC appearances, stands against judges Keith McCall and KK Mtiyane, fresh from a stint on the appeal court. Here, Marlon the bookie would probably advise that the smart money is on Mtiyane. When these contests are considered in their totality, the importance of the October meeting of the JSC becomes clear. The Supreme Court of Appeal must be changed both in terms of demography and jurisprudential approach. The leadership of the provincial divisions needs to pass to a rather more representative group. The scale of vacancies affords the JSC a real opportunity to turbo-charge these changes.