This time it is facing sustained and adverse publicity for its failure to appoint Jeremy Gauntlett as a judge of the Western Cape High Court during the recent round of judicial appointments.
The omission has prompted the highly respected public figures Sir Sydney Kentridge and Dr Mamphela Ramphele to nominate Gauntlett for the vacancy on the Constitutional Court caused by the retirement of Justice Zac Yacoob. The retired deputy president of the Supreme Court of Appeal, Louis Harms, who nominated Gauntlett for a position on the Western Cape High Court, has been making increasingly loud noises about taking the JSC on review for its failure to recommend Gauntlett for appointment.
For the record, it is difficult to raise any rational argument against Gauntlett's appointment. He is an outstanding silk, has a long and distinguished career of human-rights advocacy – one, indeed, far superior to that of many appointed in recent years. He would bring to the job a wide range of legal skills and much experience. That he may not be charming on the bench (not a complaint that can be justified on the strength of his stints as a judge to date) and that some may find him acerbic is hardly a plausible reason for omission. Ismail Mahomed, John Didcott and on occasion Johan Kriegler, three outstanding judges, all deeply committed to the values of the Constitution, could hardly be described as shrinking violets.
That having been said, there are troubling aspects to this new controversy. City Press published some serious claims about Gauntlett having been encouraged from "on high", to which Gauntlett offered a "no comment". This may have simply been an outcome of unsubstantiated rumours that circulated before the JSC hearing, but the persistence of the claim of behind-the-scenes pressure on the JSC is disturbing.
A further potential problem is the involvement of a senior retired judge in this process. It can be argued that judges, retired or sitting, should not be publicly involved in the appointment process, except for those judges sitting on the JSC. Further, despite the persuasive arguments he has put in the public domain, some may feel that Harms is too controversial a legal figure (stemming in part from his heading of the Harms commission two decades ago) to lead a debate about transformation and judicial appointment. It is also a problem if retired judges threaten litigation against the JSC, drawing the judiciary into an appointment process from which it should remain aloof. As retired judge president Bernard Ngoepe noted recently, the courts are not the mechanism to use if one wants to be appointed to judicial office.
These observations should not, however, diminish the debate. That debate needs to focus on three important issues. First, the JSC will need to do better than simply invoke section 174(2) of the Constitution – to the effect that the judiciary must broadly reflect the racial and gender composition of the country – to deny appointment to outstanding candidates simply on racial grounds. An exemplary case is the Western Cape where, recently, there were five vacancies. The JSC was offered two of the finest legal minds in the country, Gauntlett and Owen Rogers. In this case, surely the weight of demography could have given way to the appointment of both? But only Rogers got the nod, which must prompt an intensive debate about the meaning and implications of the constitutional provision, which appears to be intended as a guideline, not an arithmetic calculation.
Which takes us back to Gauntlett and his record of human-rights advocacy at a time when this was not popular in the legal community. A number of white people have been appointed in the past few years, but it is noteworthy that few, if any, have come from those who were part of the struggle for the Constitution we now have. Most disgraceful was the repeated failure to appoint Geoff Budlender. Then came the decision not to appoint Professor Halton Cheadle to a post in the very humble Eastern Cape High Court. Again, an outstanding talent with years of commitment to the values that now make up the Constitution was rejected. Judges Dennis Davis (nominated for the Constitutional Court) and Clive Plaskett (nominated for the Supreme Court of Appeal) suffered a similar fate at the hands of the JSC.
That a number of similarly progressive black judges have also been rejected raises the related question of whether it is a race or value-based test that determines appointment decisions. Litigation is not going to solve this problem. Transparency and greater public involvement are far better options. Is it not time that not only the hearings of the JSC, but also its deliberations be open to the public, even be broadcast on radio? In this way, the constitutional principles of accountability and transparency will be promoted and the public will have the information to conduct the kind of debate that can help to ensure that the best talent in the country is not spurned.