Transformation was the main preoccupation for the Judicial Service Commission as it gathered this week in Cape Town to interview candidates for various positions on the Bench.
Race and gender representation – sorely deficient according to the numbers emerging during interviews – dominated proceedings that revolved around the transformation of the judiciary.
Less so was the perceived potential for personal transformation – if the news that the highly respected but abrasive silk Jeremy Gauntlett SC had again failed to gain a nomination from the commission is anything to go by.
This was his fourth attempt at getting on to the Bench, having failed twice previously to be appointed to the Constitutional Court. This week's unsuccessful attempt was his second bid to be nominated to the Western Cape High Court.
Business Day's website reported on Thursday that Gauntlett had not made the cut of five nominations that included advocates Owen Rogers and Ashton Schippers – both very highly regarded – and attorneys Judith Cloete, Mokgaotji Dolamo and Babalwe Mantame, which would be recommended to President Jacob Zuma.
Gauntlett is considered to be one of South Africa's sharpest legal minds, but he has built a reputation for being "acerbic" and not suffering fools lightly. As commissioner Vas Soni pointed out during Gauntlett's interview on Wednesday: "No one has challenged your competence as a lawyer, but there is concern about the nature of your comments."
Loving the law
In line with the previous questioning by commissioners, Soni mused on whether Gauntlett was possessed of the characteristics, including "patience, tolerance and civility", that were required of a judge.
Gauntlett had pointed out his 14 years acting as an appeal court judge in Lesotho without a single complaint. He also noted that arguing in court was an "adverserial" task, whereas adjudicating required "detachment", of which he was fully capable.
A clever man, who admitted during his interview, in "an Oprah moment", to "loving the law", Gauntlett is not dissimilar to the now dead contrarian Christopher Hitchens – who drew similar love-loathe reactions from people.
Hitchens, in Christopher Hitchens and His Critics: Terror, Iraq and the Left, observed that "[the] matter on which I judge people is their willingness, or ability, to handle contradiction".
It would have been interesting, if not utterly engaging, to see how Gauntlett would have handled the contradictory weapons required to be a judge and an advocate if he had been elevated to the Bench. So, too, the intellectual transformation this promotion would cause among those appearing before him.
But it would appear that the commission, mindful also of the potential "toxicity" that could pollute the division owing to a rancourous, if apparently healed, relationship with its judge president, John Hlophe, chose not to nominate him.
Briefing patterns that favoured white counsel over blacks were thoroughly interrogated by the commissioners for the effect it had on not allowing black lawyers to get the experience they needed to climb up the ladder towards the Bench.
Schippers told the commission how, despite being one of the most high-profile and well-regarded black silks in the Cape Bar, he was still dependent on briefs from the state attorney rather than from private firms. During Schippers's interview, Western Cape Deputy Judge President Jeanette Traverso revealed that of the division's 28 judges 20 were males – nine whites and eleven blacks (five black African, four coloured and two Indians). Of the eight female judges, one was black African, three were coloured, two were Indians and two were whites.
Chief Justice Mogoeng Mogoeng was vocal on the structural problems he saw with regard to the transformative challenges that faced the legal profession. These began with students at formerly black universities who did not receive the same high level of tuition as those at formerly white institutions and the detrimental ripple effect this had on transformation all the way up the legal system.
It would appear that the commission was on a bit of a peacekeeping mission this week as well. This was evidenced by the manner in which commissioners responded to the highly charged interview of Judge Mjabuliseni Madondo for the position of deputy judge president of the KwaZulu-Natal division on Tuesday – which the Mail & Guardian has established will see Judge Achmat Jappie being nominated.
KwaZulu-Natal Judge President Chiman Patel had interrogated Madondo on his record, noting that he rarely made the morning tea sessions that judges participated in to bounce opinions off each other and get a grasp of what was happening in the division.
This was a ritual that North and South Gauteng Judge President Bernard Ngoepe said was the accepted custom in most divisions.
Madondo was also quizzed by Patel about why he did not notify his superiors when he had been out of court for 11 of the 20 working days in June – his last stint before going on long leave – which the judge president had described as "a very long period".
Said Patel: "You did not report to the senior judge and say: 'Look, I'm free, I'm not in court, can you allocate me work?'"
Madondo responded that he was not sitting around "having nothing to do" and that he was working.