The recent spate of appointments to the Bench has again focused attention on the criteria for judicial appointment.
A key point for debate concerns Section 174 of the Constitution, which provides for the appointment of appropriately qualified persons and proclaims that the judiciary should broadly reflect the racial and gender composition of the country.
How is the Judicial Service Commission (JSC) to work with these imperatives?
A coherent approach suggests that, once the question of appropriate qualification is determined, the JSC must ensure that those chosen from this list of qualified people are representative of race and gender.
But critics of the JSC claim that it conflates the tests, so that the initial decision is based on race and to a lesser extent gender.
To illustrate: assuming four vacancies for judicial office, the JSC’s initial decision will be to appoint three black judges and one white, and, of these, perhaps one or occasionally two women will pass muster. This is what some would call the ‘exclusive reliance on the numbers” game.
To unravel this problem, it is instructive to reflect on the purpose of Section 174. The judiciary, inherited from apartheid, was overwhelmingly white, male and politically and socially conservative.
Change was imperative if the institution was to be lifted into legitimacy. That meant a judiciary that broadly reflected the demography of the country.
But the Constitution was designed to move the country towards nonracialism, which means that essentialising race and gender would subvert this long-term vision. In other words, at some point in the future, the character and commitment of a candidate for judicial office must be the cardinal criterion as the principle of nonracialism becomes honoured in practice.
Of course, that vision is a long way from being fulfilled, but if the journey is headed in that direction, then the words ‘appropriately qualified” need to do more work than at present in the appointment process.
Considerations of race and gender, although critical, should not alone determine the decision. As an example, take the omission from the shortlist for appointment to the Constitutional Court of Judge Azhar Cachalia.
If ‘appropriately qualified” means a technical grasp of the law, an ability to produce carefully reasoned judgments, hard work, integrity and an unbending commitment to the progressive vision of the Constitution not only in word, but also in a lifelong contribution to its core values, then Cachalia would surely now be a member of the Constitutional Court.
So, his omission may be because of these factors of qualification having been trumped by the consideration that his appointment would not have fitted a rigid application of demography. And that then would seem to be an incorrect application of the twin considerations provided for in Section 174.
But the interpretation of Section 174 is not the only problem concerning appointment. Traditionally, judges were drawn from the ranks of senior counsel from the Bar.
Since 1994 appointments have been drawn from the Bar, side bar, magistracy and academy. The Bench has benefited from this richer diversity of experience and background — although this modestly obvious point is not endorsed by all.
There are judges who, with the most conservatively recalcitrant sections of the Bar, publicly long for a return to the ‘old days”.
That is, they want all judges to be like them — white and male save for the odd black or woman who can talk about rugby, play golf and enjoy a good sexist joke.
That is not to say that senior silks do not bring a wealth of experience and legal expertise to the Bench.
For this reason alone, the transformation of the Bar is important to the future of the Bench.
Within the JSC there is understandable concern about the need to deepen the pool of potential candidates for judicial office.
Hence the imperative to ensure a larger group of black and female silks.
In turn this requires a Bar that begins to commit to a nonracial vision that celebrates diversity rather than imposes quasi-colonial uniformity.
It also means a radical change of briefing patterns so that the many talented, particularly young black and women, barristers are given the opportunity to practise law and not play second fiddle to white males, many of whom are possessed of far less ability, but appear to be used exclusively by firms of attorneys.
The debate about the criteria for appointment is important. At its core it goes to the heart of the idea of nonracialism and the constitutional commitment to the transformation of society.
It would, however, be regrettable if the debate were restricted to the proper application of Section 174 of the Constitution (significant though this issue is) and did not focus sufficient attention on the need for the legal community to move beyond the confines of a dominant discourse based on our racist and sexist past.