/ 12 April 2013

JSC’s attitude opens door to conservatism

Jsc's Attitude Opens Door To Conservatism

Three people go for a job interview. There are two positions available on the Supreme Court of Appeal (SCA). The interviews are conducted by the Judicial Service Commission (JSC).

Candidate X, who happens to be a white man, gets grilled for almost an hour and a half about his attitude to race and gender transformation on the Bench.

At the end of his interview, he is asked by Chief Justice Mogoeng Mogoeng whether he has anything else he would like to say. Having maintained full composure throughout the long cross-examination, he finally cracks and shows his frustration: "I was hoping," he says, "to have been asked about my competence and long track record as a judge."

Candidate Y, who happens to be a black woman, walks in and is politely informed that, unfortunately, the presiding officers of the appeal court, where she has been an acting judge recently, are not supportive of her appointment – for a second time.

Showing the gentlemanly poise for which he is well known, appeal court president Lex Mpati had phoned Y shortly before her interview to inform her of what one might think would be a devastating and presumably fatal blow to the candidate's chances.

A comparatively bland and un-eventful interview ensues. It lasts a little more than half an hour. Later in the day, the JSC announces that she – Halima Saldulker – is to be recommended for appointment, despite the lack of support from the senior members of the SCA, raising the question why Mpati would have so publicly undermined her future tenure by revealing this information (though such transparency should be commended).

Religion and science
Candidate Z, who happens to be a white man, then swans in after Saldulker. The chief justice begins by asking him about the MPhil and PhD qualifications he has acquired in recent years. It emerges that the judge's extracurricular studies span the Pentecostal Church and the relationship between religion and science.

Justice Minister Jeff Radebe asks: "Are you a sangoma, judge?" There is hilarity all round. "Well, I'm half- way to being one," replies Z, "a sort-of preacher". The chief justice, whose own religious zeal is well known and who is a lay preacher himself, claims not to have known anything about the MPhil and PhD, but appears mighty delighted with the answers.

There is some equally lighthearted banter about the judge's tendency to get annoyed with the Constitutional Court. The general council of the Bar has sent a submission noting that in one case, Candidate Z lashed the Constitutional Court for overturning one of his judgments.

Mpati says he would have preferred to see such an argument in an academic piece or a newspaper article, not in a judgment.

Oh, I know, naughty me, replies candidate Z. I suppose I shouldn't have got so annoyed, but, well, you know those Constitutional Court judges – before your time, chief justice – can be mighty infuriating, can't they?

Much nodding among some members of the commission, for whom, indeed, the Constitutional Court can be mighty infuriating, what with its irritating tendency to overturn government legislation.

Vital cog
Never mind. Candidate Z is avuncular, charming and eccentric and obviously a good egg. It is as if an errant, but nonetheless delightful relative has popped in for a pre-lunch aperitif.

And, indeed, lunch is approaching. So pass the sherry, old chap, and let's keep the show on the road.

If Alice had then walked in through a looking glass and the Mad Hatter had asked her to solve the riddle "Why is a raven like a writing desk?" no one who was watching the proceedings on Tuesday would have been terribly surprised, not even the most seasoned JSC observers, who walked out of the President Hotel in Sea Point shaking their heads in bewilderment at what had transpired. (Alice, you will recall, soon gives up and the Hatter admits: "I haven't the slightest idea.")

I do not mean to be disrespectful to the commission. It is a vital cog in our constitutional wheel. And it has a very difficult assignment, because in their wisdom, the Constitution-makers enjoined the commission to appoint people who are, on the one hand, "appropriately qualified" and "fit and proper" (section 174[1]), while at the same time being required to take into consideration "the need for the judiciary to reflect broadly the racial and gender composition of South Africa" (section 174[2]).

The relationship between the two is far from clear. And the commission has clearly not yet figured it out, because it spends so much time arguing about it. Clearly, and rightly, the commission's job is to drive the transformation of the Bench. You cannot keep appointing white men, however well qualified they are. But what are you to do when the only qualified and fit and proper candidates nominated are, in fact, white men?

This conundrum drives the commission mad. It is riven with division. And, unfortunately, it has a tendency to play out its lack of consensus on the subject in the interviews.

The interview with candidate X was actually all about the JSC and very little about the candidate: he was asked over and over for his interpretation of section 174(2). He was also repeatedly asked about his attitude to the appeal court decision, last September, in which the JSC's decision not to appoint to the Cape Bench any of the white candidates nominated and interviewed was declared to be irrational, a judgment that has clearly enraged the JSC, or parts of it.

Candidate Z, the other white man, was not asked a single such question, on either topic. Dumisa Ntsebeza, who had so rigorously cross-examined X, said not a word during Z's interview.

Disastrous judge
Why such blatant, indefensible bias in the conduct of the two interviews? Why such outrageous unfairness?

There is only one conclusion. The commission – or its dominant caucus – had made up its mind beforehand. For ideological and political reasons, the JSC was against Candidate X: Clive Plasket, an experienced administrative and human rights lawyer, who served the Legal Resources Centre for many years before going to the Eastern Cape Bench, where he has been compelled to rule against the provincial government on many occasions. The ANC wants pliant, weak judges. The nationalists on the JSC would prefer to avoid liberal-left white men. There is a happy marriage of convenience between the two.

Hence, the recommendation in favour of the appointment of Candidate Z – Nigel Willis – whose recent letter to this newspaper in support of the national development plan's economics was read back to him approvingly by the chief justice. The Constitution, Willis wrote, should not be "interpreted as if judicial fiat can succeed where every socialist revolution has failed". (There was also some shared banter at the expense of Serjeant at the Bar, the Mail & Guardian columnist who had critiqued Willis's judgment.)

A human rights lawyer who works on cases of eviction and the right to housing told me after the hearing that Willis was a disastrous judge: seeing the Constitution through the lens of private property. His judgments, said the lawyer, had caused massive harm to poor people and their eviction rights.

These days, the ANC wants obedient judges who "know the limits of judicial power". It is not being a white man that is a disqualifier for judicial office, it is being a white man with a commitment to the progressive values of the Constitution and the protection of human rights that will destroy your prospects.

Cosatu and the South African Communist Party should pay more attention as more and more conservatives like Willis are appointed to the Bench. I suspect, though, that once there Willis may prove to be far less amendable than the ANC and the government assume. And that would be one of a number of bitter ironies permeating the JSC, an institution fast losing its way.