/ 19 April 2013

Call for commission to remap judicial appointment process

Advocate Krish Govender believes the executive discretion involved in judicial appointments ought to be reconsidered.
Advocate Krish Govender believes the executive discretion involved in judicial appointments ought to be reconsidered.

Much like the national planning commission, it will address increasing concern about judicial appointments and the ­transformation of the judiciary.

Govender, who until December last year served on the Judicial Service Commission (JSC), which interviews and recommends candidate judges to the president for appointment, said thorough planning for the transformation of the judiciary had been "neglected" and that such a move should be forward-looking, ­inclusive and "enhance transformation and ensure confidence in judicial appointments".

Govender was speaking on the sidelines of the 18th Commonwealth Law Conference in Cape Town, following a session he had participated in titled: judicial appointments.

During his presentation, he suggested that the process for appointing Constitutional Court judges in South Africa – in which a list with three names more than the number of appointments to be made is recommended to the president to choose from – should also be reconsidered along with Section 174 of the Constitution, which gives the president that selection power.

Govender said the system could lead to a "lottery" for potential candidates and that "the president should not be entrusted with that responsibility [of appointing judges to the Constitutional Court] as it compromises the separation of powers".

There has been increasing public volubility about the appointment of judges and the JSC's role in hastening the transformation of the judiciary following the commission's sitting last week in Cape Town to interview candidates. It started with a daylong closed-door discussion on the issue of transformation, after a report penned by one of its members – ­advocate Izak Smuts – was circulated to the public and the media.

Smuts's report questioned whether the commission was biased against appointing competent white male judges and what its constitutional obligation was in regard to transformation. He resigned at the end of the commission's sitting last Friday, stating that he had on "numerous occasions been in despair at the outcome of the [commission's] deliberations" and that it had "left a trail of wasted forensic talent in its wake".

The furore continued into the conference, when Chief Justice Mogoeng Mogoeng, addressing delegates from 54 countries at its opening on Monday, lashed out at critics and lobby groups for "recklessly" delegitimising the commission and its work.

Concerns have been raised within the legal fraternity and broader public about the politicisation of the commission and the fact that it may be appointing "compliant" and "executive-minded" judges.

A number of politicians sit on the commission, including Justice Minister Jeff Radebe, four members of the national council of provinces who are all ANC members, and six members of the national legislature, of whom three are required to be from opposition parties.

Dr Karen Brewer, the secretary general of the Commonwealth Magistrates and Judges Association, said on Thursday the best model for a judicial appointment body was for there to be "no members of the executive or legislature whatsoever".

Brewer said this conclusion had been arrived at after her association, together with the Commonwealth Lawyers Association and Commonwealth Legal Education Association had concluded a year of research into judicial appointment bodies with a view to creating a relevant model clause that might be included in the Latimer House Principles, which set out the relationship between the three arms of government to Commonwealth member states.

She said research had shown that the inclusion of politicians on any judicial appointment body compromised the separation of powers and that, to ensure transparency and rigour, such a body should ideally include more judges and lay people.

Meanwhile, Smuts's resignation has led some public-interest lawyers and legal research centres to call for the General Council of the Bar to replace him with a "senior, black, female candidate" to fulfil the imperative of transformation.