The media has been awash with coverage of the Judicial Service Commission's (JSC's) decision to deny advocate Jeremy Gauntlett a place on the Western Cape bench. No one, not even the JSC, denies that Gauntlett is an adroit and distinguished lawyer. The reason for his non-appointment appears to be that they are "just not that into him". Although that is perfectly acceptable in the dating world, we are entitled to know more about the reasons behind judicial appointments – and not only in relation to Gauntlett.
The JSC emphasises that it is bound by section 174 of the Constitution to consider that the judiciary reflects the demographics of the country. This duty binds the president equally when appointing the members of the Constitutional Court. A representative judiciary is essential for its legitimacy, but the constitutional provision does not require a fixed, narrow, numerical consideration. But even if one accepts the reasoning of the JSC, a neglected question is why then, in the midst of all the hoopla regarding the imminent vacancy on the Constitutional Court, there is no serious public discussion about the under-representation of women in the judiciary?
A recent opinion piece in the Mail & Guardian (Sergeant at the Bar, November 23 2012) advocates greater transparency in the appointment process. I wholly support that call in respect of both the JSC and the president. And I would like to add another: that the interview process should probe every candidate's views regarding the core values of the Constitution and how they would approach the balancing act the Constitution requires when rights appear to be in conflict, for example, how to balance customary law and gender rights, or the balance between private property and the need to achieve social justice.
Substantive gender equality (as in the case of racial equality) does not preclude the appointment of men who exhibit the values that are consonant with such transformation. Nor does it necessitate the automatic appointment of a woman on the assumption that she holds these values. But it is high time that we raised the volume in our call for the appointment of more women.
The M&G article laments the repeated decisions of the JSC in the past not to appoint candidates such as Geoff Budlender or Halton Cheadle to the high court. The failure to do so has meant that we have been deprived of legal minds whose long histories of using the law to fight injustice should make their appointment sought after. But what of women with similar acclaim who have not been appointed? The Constitutional Court, in its inauguration, had two women on the bench of 11. The Court still has only two women. Is it because the pool of talented women is too small?
Whimper in the public debate
If one considers the demographics of the largest bar in the country, the Johannesburg Bar, it is evident that women are still a small minority within its membership.
Of the 187 senior counsel who practise in Johannesburg, only 15 are women (12 white, three black, no Indian or coloured). There are 452 advocates who have been in practice for five years or more and 115 are women. So the pool is small, but is that not more reason to promote meritorious women when they make themselves available? I have in mind the example of Justice Mandisa Maya. In the appointment process for the two previous vacancies (in 2009 and 2012) on the Constitutional Court, Justice Maya made herself available. In Maya, the imperative of gender transformation is married to superb merit. Apart from her excellent academic qualifications and community activism, Maya has penned more than 150 judgments, including dissents.
Yet her non-appointment was met with hardly a whimper in the public debate. It is the president who appoints the members of the Constitutional Court upon a list of recommendations by the JSC. In the spirit of transparency referred to earlier, the JSC should publish the report (if it exists) to the president that sets out the basis upon which it recommends specific individuals. In turn, the public should be entitled to ask the president to provide reasons – to take us into his confidence, rather – for not appointing the only woman on the list.
I have no personal relationship with Justice Maya and in raising her example, I mean no disrespect to others who were appointed. Indeed, Justice Raymond Zondo had also made himself available twice for a vacancy in that court. However, Maya has declined a third nomination for the latest vacancy and that is a sore loss, but one can understand her reluctance. We await the announcement of the pool of candidates. We should hope for a few good women amongst them.
We are fortunate to have women of the calibre of Justices Sis Kampepe and Bess Nkabinde on the Constitutional Court. Surely there is space for more?
Adila Hassim is the director of litigation at non-profit Section27