When it comes to filling senior posts in the judiciary, a judge’s ability is no longer determined by the number of gray hairs on his head Khadija Magardie When the Judicial Service Commission (JSC), the body tasked with appointing judges, met this week to interview its latest batch of candidates, its preoccupation with “transformation” appeared to dwarf its interest in all other qualifications for judicial office. The hearings were dominated by the question of how to “transform” the Bench. But both the panellists and the candidates appeared unable to agree on what they believed transformation in the context of the judiciary meant. The commission was considering vacancies for a number of senior posts – including four vacancies on the Supreme Court of Appeal. Also interviewed were candidates for the positions of judge president of the Free State and Kwa-Zulu-Natal provincial divisions, and for a number of vacancies in the Transvaal provincial division. All eyes were on the positions for the court formerly known as the Appellate Division, which until recently had been the sole preserve of ageing white males.
The JSC sent a clear message that the era of white, male domination of the judiciary – both in the lower courts and in the upper echelons – is over. Also on its way out is the judiciary’s slavish adherence to a hierarchy based on seniority, a system that qualifies a judge’s ability to occupy high office by virtue of the number of gray hairs on his/her head. The hearings offer remarkable insight to the lives of the men and women who oil the wheels of justice – offering candidates the opportunity to “sell” themselves.
Acting Constitutional Court Judge Edwin Cameron arrived with his mother Sally and his sister, Jean Richter, in tow. With his proud relatives beaming from the public gallery, Judge Cameron’s sterling legal career was related to the panel. Asked about bringing diversity to the appeal court, Judge Cameron said that as a gay man, and a person living with Aids, he would bring broader diversity to the Bloemfontein court. Panellists then took turns to grill Judge Thomas Cloete on his membership of the Masonic Movement. Judge Cloete’s disclosure that he belonged to “a secret organisation” may prove his undoing after New National Party MP Sheila Camerer opened a Pandora’s box by questioning the Masons’ exclusion of women from their meetings. Pretoria advocate Anna-Marie de Vos, SC, provoked a flurry of journalistic activity when she spoke of her long-standing lesbian relationship and her adoption of two black children six years ago. Two rows of members from the Johannesburg Bar and the Pretoria Bar attended to support De Vos, who is applying for a permanent post in the Transvaal division. But in a typical instance where qualification gets overshadowed by “the diversity agenda”, the line of questioning kept returning to De Vos’s personal life. Acting appeal Judge Lex Mpati, whose career spans stints as a petrol attendant, furniture salesman and barman in Grahamstown, engaged in light-hearted banter with the panel over references to his decision to join “The Bar”. Strongly tipped for one of the posts, Judge Mpati admitted initial reluctance to join the Bench, feeling he had insufficient experience. But Judge Mpati has sufficiently impressed to be one of the favoured contenders for the post. In its submission to the JSC, the Eastern Cape Bar Council statement said that Judge Mpati’s curriculum vitae “does not do justice to his actual contribution to the community”. Asked about transformation, Judge Mpati said the most important factor that determines the success of any candidate to the Bench, particularly the appeal court, is teamwork. He added that in the short time he had been at the appeal court, he had been well-received. Judge Mohamed Solomon Navsa, at 43 the archetypal “young judge” who may herald sniffs of disapproval in the corridors of chambers, offered the panel a candid view of how transformation can be confused with tokenism. A current acting judge of appeal, whose illustrious career includes a directorship at the Legal Resources Centre, taking silk at the Johannesburg Bar, and turning around the ailing Legal Aid Board, Judge Navsa did not mince his words. “I didn’t want to be an affirmative action judge with a negative connotation attached to it – I didn’t want to be condescended to”. He added: “I wanted to be prepared, to show white counsel, especially, how clever I was … I didn’t want to shame my race.” For Judge Navsa transformation may have come to mean one thing – working hard to render oneself competent. For others, transformation may require bending the rules, to give the less qualified, even the less competent, a break.
Advocate Nicolaas Johannes Coetzee, an acting judge applying for a permanent provincial post, hit out at the system of “breaks”. He decried the suggestion that a “nanny” system should be put in place to secure the services of black and female articled clerks and pupils wishing to become advocates. “You can’t assist people all their lives; once you put them through their articles they have to fend for themselves,” he said. Judge Robert Nugent, an appeal court applicant, also offered a different take on transformation. “I would rather not look at race, but prefer to look for skills. One mustn’t underestimate the amount of skill it takes to be a good judge.” Judge Nugent said he believed the Bench was a crucial tool for transformation, which meant it had to be staffed with the right people. “If you look for the right people, you will eventually find them, black men and women included. If you end up with a white, male judiciary you have not been looking in the right places and asking the right questions.”
The panellists, ranging from politicians and lawyers to academics, sit around a horseshoe table, with the candidate’s seat at the lower end. The President of the Constitutional Court, Arthur Chaskalson, sits at the helm, with the Acting Chief Justice, Hennie van Heerden. On either side are Minister of Justice and Constitutional Development Penuell Maduna and the Judge President of the Transvaal Bernard Ngoepe. Interrogating each candidate about their legal competence, Judge van Heerden bluntly asked several candidates why they should be given the position on the appeal court without having sat as an acting judge first. His acerbic questioning made something of a mockery of Johannesburg High Court Judge Lucy Mailula. Judge Mailula, whose relatively lacklustre career prompted several raised eyebrows when she applied for the post, appeared to have won over the hearts of the panel when she described one of her rulings that forced the military to allow a Zulu man to wear a traditional amulet. Her statement that she “would bring an African perspective, so to speak” to the courts was notching up points until Judge van Heerden fired off a barrage of questions, asking Judge Mailula if she had ever been involved in some six specialist areas of law that are often brought before the appeal court. Answering no to nearly all of them, Judge Mailula’s confidence appeared to wane. She appeared flustered when asked how many of her judgements were reported and “couldn’t recall” whether any of the cases in which she appeared as counsel dealt with matters of constitutional principle. She also “couldn’t recall” why she did not provide the JSC with any of her written judgements, often used to analyse how the applicants express themselves in writing. Judge Mailula admitted that she had appeared as counsel before the appeal court on only one occasion. It all appeared to be moving rapidly downhill until several high-profile JSC members dived in to save Judge Mailula with “sweetheart” questions. “Is it not so that you, as a trained lawyer, and a judge, would find no difficulty in mastering such issues as intellectual property law?” cajoled one panellist. Another gave the panel a lengthy background lesson on Judge Mailula and was at pains to explain how she “wasn’t given sheltered employment, but was thrown in the deep end”. Panellists said they favoured a combination of factors, including character, “the past” and the legal background of the candidate. One panellist, however, said the strategy was two-pronged: to find someone possessing the skill, ability and competence for the post, and to find someone who reflected “the mindset” of transformation. They scotched perceptions in some legal circles that the hearings were mainly a formality, with the outcomes predetermined. Judge Ngoepe said that because panellists had details on the candidates beforehand, some of the interviewers might have some preconceptions about their choices, but stressed the importance of the interviews. Maduna shrugged off any suggestion that the hearings were mainly for show.