/ 12 April 2013

JSC conflict laid bare by inconsistency

On Tuesday morning in Cape Town, the ­Judicial Service Commission (JSC) appeared irascible, as if it was sniffing around for a decent brawl to release some pent-up frustration.

Eastern Cape High Court judge Clive Plasket, an intelligent jurist with a human rights activism record going back to the fight  against apartheid, bore the brunt of this apparent ill temper when he appeared as the first candidate interviewed for a position on the Supreme Court of Appeal (SCA).

It was a brutal round of questioning that lasted just over two hours.

The commission had spent the entire previous day discussing transformation after an internal report by one of its commissioners, advocate Izak Smuts, had been leaked to the media and made public. In the report, Smuts had questioned the transformation obligations of the commission and whether it was biased against appointing white males to the bench, unless in "exceptional circumstances".

Plasket, a pale male, preceded South Gauteng High Court judges Halima Saldulker, a woman, and Nigel Willis, another pale male, in interviews for two positions in the appellate court where the scope of cases heard is wide-ranging and intellectual rigour is demanded of its judges.

With almost 70 reported judgments, a strong body of academic work, a background in administrative law and an adherence to the egalitarian values of the Constitution, Plasket would appear a good fit for the appellate court, said lawyers who spoke to the Mail & Guardian.

The commission inflicted inquisitorial blows on Plasket like George Foreman's punches on Muhammad Ali during the Rumble in the Jungle's early rounds. Only the action near the Atlantic did not land a rope-a-dope result in the judge's favour at the end.

Innocuous comment
He was repeatedly asked about his understanding of transformation and the logic of a Supreme Court of Appeal ruling that had held that the commission had acted irrationally in previously not appointing white male candidates to two out of three vacancies on the Western Cape bench.

Commissioners returned several times to a seemingly innocuous comment Plasket made in response to a question couched in the commission's own process of introspection this week regarding transformation.

Plasket had said it was "very healthy for a body such as [the commission] to be introspective and try to examine issues around its legitimacy. It can only do its job properly if it is legitimate." This appeared to be interpreted by people like Justice Minister Jeff Radebe as a questioning of the very legitimacy of the current commission itself.

A generous analysis of the interview would suggest a rigorous commission, fired up by the current transformation controversy, putting a white male judge through his paces. A less generous interpretation would suggest a thin-skinned, prickly commission working out its transformation hangover from the previous day on poor Plasket. The M&G understands that Monday's meeting was heated: chief justice Mogoeng Mogoeng described it as "robust".

Plasket, perhaps, had allowed himself to be drawn into a debate that pitted race against merit and had slid down a slippery slope, at the bottom of which he emerged, unfortunately, as appearing white, male and entitled.

Attempting to fathom the commission's thinking is like trying not to laugh at Mike Tyson's squeaky lisp, often an exercise in futility. With a minimum of 23 commissioners from different political parties and sectors of the legal fraternity, it is supposed to be a diverse body, but it is sometimes also capricious and moody.

So it was inexplicable, yet understandable somehow, that Willis, during his 40-odd-minute interview was not asked a single question about transformation.

A cynical reading would suggest that Willis was given an easier ride, despite the colour of his skin and perceptions of his interpretation of Constitutional values, because he would appear to be more executive-minded.

Willis, according to sources in the legal fraternity, is a ­"maverick" pro-capitalist who has been scathing about  the socioeconomic jurisprudence regarding housing rights developed by the Constitutional Court.

In the end, Saldulker and Willis were recommended for positions on the Supreme Court of Appeal, a decision that has not gone down well within the legal fraternity.

A legal academic told the M&G that the inconsistency between Willis's and Plasket's interviews best demonstrated the commission's confounding approach to transformation, especially when trying to understand its methodology in this regard.

A former commissioner was even more scathing about the recommendations, suggesting that the problem was "not that the commission doesn't appoint white males, but that it appoints compliant weak white judges rather than strong independent-minded ones like Plasket or Geoff Budlender. This does the judiciary a disservice and is weakening an important court like the SCA. This is very worrying because the SCA has been a strong court that has often rectified the cock-ups in the high courts. One wouldn't want it dumbed down."

Section 174(2) of the Constitution requires that the judiciary "reflect broadly the racial and gender composition of South Africa" and is used by the commission to drive its transformation agenda when appointing judges.

This is not fleshed out in the criteria for judicial appointments that the commission made public in 2010. The document does, however, list experience, integrity, competence, "appropriate potential", "symbolism" or the message sent out to the community by an appointment and the "capacity to give expression to the values of the Constitution" as other criteria for judicial appointment.

These criteria become more complex and lend themselves to a level of inconsistency when there are attempts at "transformation" by a commission that often appears to frame it as narrowly pitting race against merit, which is offensive to the many clever, competent black judges and lawyers in country.

The commission sometimes also appears to disregard the vitally important question of whether judges – before considering race or gender – reflect the progressive values of the Constitution.

There is a "fracture", too, said the academic, in the impetus the commission feels when appointing women compared with black men. And there is a need for greater female representation on the bench. Of South Africa's 241 permanent judges, only 70 are women and of those 29 are black Africans, nowhere close to reflecting a South Africa in which more than half of the population is female.

With these sorts of figures and a brewing transformation storm, it was therefore even more puzzling when the commission announced on Wednesday that judge Aubrey Ledwaba was recommended to fill the vacant North Gauteng High Court deputy judge-presidency over two women: Letty Mpho Molopa-Sethose and Cynthia Pretorius, the latter appearing to have done the best in the interviews.

Mogoeng was at pains at a press conference on Tuesday to point out that "it is not a constitutional imperative to appoint the best of the best" and that the commission was further guided by "capacity challenges" in a particular court and its short medium-and long-term demographic make-up when considering transformation and appointments.

These are tangible criteria that give insight into how the commission thinks and acts. But there are not very many more because, as a former commissioner noted about deliberation on transformation appointees, "it is about intuition".

"Ultimately, you have to go with your gut on who will make a good judge or not and for that you need very clever commissioners," said the former commissioner.