/ 9 April 2013

JSC defends transformation imperatives for the judiciary

Chief Justice Mogoeng Mogoeng and Justice Minister Jeff Radebe.
Chief Justice Mogoeng Mogoeng and Justice Minister Jeff Radebe.

The Judicial Service Commission on Tuesday announced that the names of South Gauteng High Court judges Halima Salduker and Nigel Willis would be recommended to President Jacob Zuma for appointment to fill two vacancies at the Supreme Court of Appeal.

The commission, which is sitting in Cape Town for a round of interviews to fill various judicial positions, also sought to address a cloud around transformation that has been hanging over the body after a report by one of its commissioners, advocate Izak Smuts, went public over the weekend.

In the report about transformation, which Smuts had been asked by the commission to compile during its October sitting last year, the Eastern Cape based lawyer raised the issue of the apparent non-appointment of suitable white male candidates to the bench.

Smuts wrote: “If the majority view is that, for the foreseeable future, white male candidates are only to be considered for appointment in exceptional circumstances (an approach I consider to be unlawful and unconstitutional), the JSC should at the very least come clean and say so, so that white male candidates are not put through the charade of an interview before being rejected.”

Noting that there was no quick-fix solution to ensuring the Constitutional obligation that the judiciary be “broadly” reflective of the “racial and gender composition of South Africa”, Smuts added that “simply to ensure racial and gender quota representation, would be an extremely dangerous approach because judges, once appointed, are very difficult to remove”.

'Racial and gender composition'
In a specially convened press conference, Chief Justice Mogoeng Mogoeng said it was “unfortunate” that the document had been made public as it was intended to “stimulate internal debate and discussion”.

Mogoeng said Smuts had apologised during a closed session of the commission that had taken up all of Monday. He added that discussion of the report had been “lengthy and robust”.

In prepared statement, Mogoeng said the commission was committed to consider the obligation of Section 174(2) of the Constitution to “reflect broadly the racial and gender composition of South Africa” when judicial officers are appointed – and that it would continue to do so.

Mogoeng also pointed out “that white males are in fact regularly recommended by the Judicial Service Commision for appointment” and that the commission “is not pursuing and never has pursued a so-called covert political agenda”.

The issue of transformation dominated the first interview for the two vacant Supreme Court of Appeal positions on Tuesday when Eastern Cape High Court judge, Clive Plasket, was grilled for over two hours – in stark comparison to Salduker’s and Willis’s interviews, neither of which went over an hour.

Plasket, who is currently acting at the appellate court and is an expert on administrative law was questioned over a Supreme Court judgment – a case he had not sat on, nor had a hand in writing – that had found the commission had acted irrationally in not appointing candidates to four vacancies at the Western Cape High Court.

Plasket said he imagined the Supreme Court judgment to be “correct” adding that “rationality isn’t a free-flowing concept” and that “a decision must be rationally linked to the purpose of the power given”.

Transformation
With Smuts’s report hanging over the interview, Plasket, who had previously been interviewed for a supreme court position, was asked what his impressions of the commission’s attitude to the appointment of white males was.

Plasket said it was a “very uncomfortable question to be asked” and that he could “only go by my previous experience here … Unfortunately that is not very helpful as I do not know the reasons why I wasn’t recommended,” he said.

Plasket said he was supportive of transformation within the judiciary, but that transformation wasn’t about using a “calculator” and Statistics South Africa figures on the country’s demographics.

Rather, said Plasket, transformation of the judiciary through appointments involved a “balancing of competing factors” including experience, reported judgments, adherence to Constitutional values and the need for affirmative action on a particular Bench.

But Plasket stressed that “candidates must know [what these competing factors] are and there must be predictability [about them]".

When various hypothetical scenarios around affirmative action were described to Plasket, he suggested that the commission would have to decide on how it “balances merit versus potential … part of that is an assessment of how big the merit gap is”.

He added that if an appointment was made but the “merit gap was too wide, then the decision would be irrational … it becomes much trickier if the merit gap is closer,” he said.

'Pale males'
Surprisingly, Willis, who is also a pale male, was not put through the transformation wringer when he followed Salduker into the interview chair as the final candidate.

Rather, Willis was quizzed about his religious theses for a PhD and an MPhil – the latter, on whether religion and science could speak to each other, which commissioner Koos van der Merwe, especially, was keen to get his hands on – and about not having acted at the Supreme Court of Appeal.

It was a rather convivial exchange for Willis, as jokes were shared and Justice Minister Jeff Radebe even tested his German at one point.

When asked about having responded to a Constitutional Court judgment that had criticised an earlier eviction of Willis’s, the South Gauteng High Court judge said that he had been “very annoyed” at the time.

On his judicial temperament, Willis assured the commission that he was not someone “who eats children for breakfast”.

Currently acting at the supreme court, Salduker’s interview was the most benign and uncontroversial of the three.

The only prickly point coming early on as Lex Mpati, judge president of the Supreme Court of Appeal, said he had canvassed colleagues who had sat with Salduker, who had said “you don’t make contributions expected of you during hearings” and that her judgments required work.

Responding, Salduker said all judges had the right to grow into their robes.

The commission did not recommend any of the two candidates it interviewed for a vacancy on the electoral court on Tuesday.