Over the past few years the Judicial Service Commission (JSC) has spurned the opportunity to appoint some searing legal talent. Geoff Budlender was the first casualty. In his case the decision was utterly inexplicable.
Here was one of the finest legal minds in the country, with some 20 years of progressive lawyering during the difficult times of apartheid under his belt and the temperament to become one of the greatest judges to grace a South African Bench. But he was deemed unsuitable by the JSC.
Then came Jeremy Gauntlett, one of the most distinguished barristers in the country, who took on a number of difficult cases during the apartheid era on behalf of those who had been detained or communities who had been denied their rights. Although some may say that Gauntlett can be a prickly person, that is hardly a reason to deny the Bench so fine a talent.
Halton Cheadle followed the same fate. The Eastern Cape Division was denied his expertise even though there probably has not been a judge from that division who combines his legal brilliance and dedication to transformation (in his case, as a labour lawyer for Cosatu who was banned by the apartheid government).
At a hearing in October last year, the JSC refused to appoint Willem van der Linde, an outstanding member of the Johannesburg Bar, whose expertise would have hugely benefited the South Gauteng High Court. Its justification was that as a very young man Van der Linde had been a member of the junior wing of the Broederbond. This despite the fact that judges of far less talent had been appointed notwithstanding their membership of the Broederbond or Freemasons.
Now we learn that Owen Rogers, one of the very finest advocates in the country, whose talents the Cape High Court desperately needs, is deemed “not suitable” for appointment, even though the JSC has left two vacancies unfilled. In Rogers’s case there is a suggestion of a lack of commitment to transformation. As if the past few white appointments, who cannot hold an intellectual candle to Rogers, had shown any such commitment.
These developments are truly disturbing. After all, judges exercise vast powers in a constitutional state and are appointed for life. The public, whose conditions of life the judiciary helps to shape, with the executive and legislature, should be keenly interested in appointments to the Bench. It is, of course, not only in white appointments that problems have occurred. The omissions of Judge Dunstan Mlambo and Judge Mandisa Maya from the Constitutional Court and Ray Zondo from the Supreme Court of Appeal are also unexplained decisions.
There appears to be a trend — the rejection of the finest. It goes without saying that the vital imperative of a representative Bench means that making appointments to it can be a fraught exercise. But the thrust of the charge here is that mediocre white appointments have been made without demur and, further, the need to take account of the rare case of brilliance which can only enrich the entire judiciary seems to have been consistently overlooked.
Indeed, it has been reported that Advocates for Transformation recommended that only Owen Rogers be appointed to the Cape Provincial Division, itself a reflection of the growing consensus about how to transform, which appears not to be shared by the JSC.
An equally disturbing development which may parallel this issue is to be found in a speech by Minister of Justice Jeff Radebe. Speaking at a memorial for the late judge president of the KwaZulu-Natal High Court, Herbert Msimang, the minister complained, with some justification, that certain criticisms of appointments to the Bench have been motivated by anti-transformation elements or, in plain speech, racism. So far no problem. But then he continued: “Each time the issue of the Cape judge president, John Hlophe, is resuscitated in courts there is a numbing feeling that there may be forces that are working against the imperatives of transformation.”
If the minister is suggesting that the saga surrounding Judge Hlophe is nothing more than a conspiracy against transformation of the Bench is he then contending that members of the highest court in the land were against transformation when they lodged a complaint against Judge Hlophe? Or is he arguing that the judgments of the Supreme Court of Appeal, which so luminously showed fundamental legal errors committed by the JSC in the conduct of the hearing, were similarly inspired?
Let us give the minister the benefit of the doubt. He meant that there are reactionary forces who use the Judge Hlophe case to argue against judicial transformation. One can then hope that the minister is not arguing against the motivation of the Constitutional Court judges nor the judgments of the Supreme Court of Appeal and, further, that he is not suggesting that it would be wrong to hold a properly constituted legal hearing to settle the Hlophe matter.
If he is not saying this, then racial essentialism has truly replaced transformation towards a non-racial, non-sexist society in which a similarly constituted Bench holds to the highest ethical standards. Both the JSC and the minister owe the country an explanation.