Western Cape Judge President John Hlophe has recommended that a judge or judges from outside the racially divided Western Cape judiciary should hear a contentious court case that will turn a spotlight on allegations of racism concerning the Judicial Service Commission (JSC) and the Cape Bar Council.
Members of the provincial legal fraternity interviewed this week seem unfazed by the plan, feeling more strongly that they wanted a full Bench to hear the matter.
The case is set to heighten tensions between the Western Cape High Court Bench on the one hand and the Bar council and the wider legal profession on the other.
The council is challenging the JSC’s decision to fill only one of three vacancies on the Western Cape Bench, calling it “irrational, unfairly discriminatory, unreasonable and otherwise unconstitutional and unlawful”. At issue is the fact that none of the three senior counsel it backed — Michael Fitzgerald, Sven Olivier and Owen Rogers — was chosen to fill the vacancies. All three are white. It is believed that Rogers has submitted his name again for new selection hearings set for October.
The council has urged that the matter be heard before then. Its chair, Alasdair Robert Sholto-Douglas, warned in a court affidavit that if the dispute was not settled before the October hearings, and if the JSC failed to give a suitable undertaking, the council “would have to consider bringing an urgent application for an interim interdict preventing [it] from selecting judges for the two disputed vacancies”.
The JSC hit back in a replying affidavit by commission member Ishmael Semenya SC, claiming that the council had never supported an African candidate for the Bench.
A legal source who asked not to be named emphasised that the African candidates backed by the council included Hlophe, successively as a judge, deputy judge president and judge president.
Sholto-Douglas said in his affidavit that the Western Cape High Court Bench already broadly reflected the racial composition of the Western Cape because it was 60.1% black. With two judges having recently retired, the provincial Bench comprised 11 coloured, 11 white and six African judges, he stated.
Although the JSC has not officially adopted racial or gender quotas in its recommendation of judges, transformation of the judiciary is an explosive subject in the Western Cape.
The JSC argued in its court papers that it was “not entirely correct” to say that it lacked an affirmative action plan. Semenya said the JSC did not include or exclude any candidate from its recommendations because of race or gender. “However, the constitutional mandate to ensure that the judiciary should broadly reflect the demographic make-up of the South African citizenry is taken into account by the members of the Judicial Service Commission when they vote for a particular candidate.”
The JSC interviewed seven short-listed candidates in April but selected only Judge Robert Henney, who is coloured. The council said that the relief it sought did not “impugn the appointment of Judge Henney”.
The views of pressure group Advocates for Transformation on the recent nominations will also be heard in court. Its chair, Takalani Madima, said in a letter to the JSC that there were only eight female judges on the Western Cape Bench and a few black judges were nearing the end of their terms. “We therefore would recommend that a great majority of future appointments are of female judges generally and black female judges in particular.”
Whereas it supported the nomination of Rogers, a top silk involved in the transfer of skills to junior members of the Bar, Madima said her organisation believed the black and female nominees required further experience in acting positions.
The council describes Rogers as “one of the finest lawyers ever to have practised as a member of the Cape Bar”. Under pressure, the JSC revealed that Rogers received 12 votes from the 24-member commission, not a clear majority.
Sholto-Douglas argued in his court affidavit that during some of the interviews, and on the day that Rogers was interviewed, the proceedings were not properly constituted because neither Supreme Court of Appeal president Judge Lex Mpati nor his deputy, Louis Harms, was present.
Semenya said it was usual for the process to continue when one of its members could not be present.
Sholto-Douglas acknowledged in his affidavit that the JSC had to consider the need for the judiciary to broadly reflect South Africa’s racial and gender composition. But he added that leaving judicial posts vacant, “particularly in the absence of a rational policy, plan or programme that justifies it not selecting a judge or judges when there are suitable candidates, is — haphazard, random, arbitrary and unfair”.