Smuts 'was correct' to resign over JSC transformation row
"If you find the institution to which you belong is doing things in a way that is so untenable, then the best thing for you is to leave that institution," advocate Dumisa Ntsebeza told SAfm on Monday.
"He has done what I think the correct thing is to do in the circumstances."
Senior advocate Smuts resigned from the JSC last week amid disagreement on the transformation of the bench. Smuts, who was appointed to represent the advocates' profession in 2009, had been critical of the Judicial Service Commission (JSC) for overlooking white men for judicial appointments.
His discussion paper was titled "Transformation and the Judicial Service Commission", and in it he complained that white males were being unfairly overlooked for judicial appointment.
He reportedly said there existed "a very real perception in certain quarters that the JSC is, in general, set against the appointment of white male candidates except in exceptional circumstances".
In a statement handed to reporters shortly after the JSC concluded interviews for aspirant judges, Smuts launched a scathing attack on the commission, similar to comments he made on transformation in the document handed to the JSC earlier in the week.
Ntsebeza said when Smuts was asked why he was resigning, he said "for obvious reasons", but said nothing about the document.
Track record of the JSC
"I suppose in the context of what had been happening during the week, he understood what the obvious reasons were and he expected us to understand what his reasons were," he said.
"But what he didn't say and what he didn't distribute at that very moment when he was announcing his resignation was this two page statement in which he stated the reasons and the basis on which he was resigning."
In the statement, which was issued on Friday, Smuts described the track record of the JSC, during the few years he served on it, as disturbing and said the commission's image was tarnished.
Smuts told SAfm he stood by his decision to distribute his document on transformation in the judiciary.
"To suggest that I was not entitled to circulate a document which I prepared is laughable, the JSC doesn't own me. It was a discussion document, it was intended to reflect existing debates and to get them to focus on the matter."
Smuts said he had written the paper to get the JSC to ask itself if it was doing what the Constitution required of it. He said he would not apologise for writing the document, but rather for circulating it before the JSC could discuss it.
'Freedom of speech'
"I certainly did not apologise for the document. I believe in freedom of speech, that I was entitled and am entitled to distribute any document which I generate."
Smuts said it was unfortunate the debate became exclusively racial.
"It's not just about white males. On a number of occasions the commission has failed to appoint or promote extremely talented individuals or independent-minded candidates. The debate has far more nuances than simply a racial one," he said.
"The government ... does not like independent judiciaries that hold them to account, and if you appoint less independent-minded individuals you can hope that you get fewer unfavourable judgments against you ... The JSC has rejected some of the finest legal minds in this country and that's deeply disturbing," he said. – Sapa