When judges are appointed the Constitution must be the starting point. All law
When I was interviewed by the Judicial Service Commission (JSC), I was asked about the transformation of the judicial system. The issue has arisen again in relation to the commission's most recent interviews and is so important that, in my view, even a sitting judge should be permitted to explain his or her position.
The starting point must be the Constitution. Two provisions plus an overriding principle are critical. In terms of section 174 (1), to be appointed as a judge a person must be fit and proper and appropriately qualified. Subsection (2) provides a supplement: account must be taken of the need for the judiciary to broadly reflect the racial and gender composition of the nation.
The overriding principle is that ours is a transformative Constitution. It is designed to move our society from its racist and sexist past to one that dignifies each South African and thus promotes their rights to equality and freedom. With these ambitious goals, the Constitution mandated a complete interrogation of existing law to ensure that all law would be congruent with these foundational constitutional commitments.
The first question is: What is meant by "appropriately qualified"? It requires more than technical legal competence. Obviously, a sound knowledge of the law is required, but that alone is not sufficient. For example, the so-called "Rabie court" during the 1980 emergencies was staffed by judges who could only have written their legal monstrosities because of a fine technical ability, which en-abled them to mould legal concepts to meet the needs of the regime. In substance, they were not judges but apartheid Gauleiters.
We must lift our gaze and examine an applicant's judgment, ability to listen, understand the "Other", grasp the implications of our history, have an unbending commitment to justice and to ubuntu; he or she must possess the humility to realise that he or she may not invariably be correct. Of course these are qualities that applicants for judicial office will possess in varying degrees, but they are all components of "appropriately qualified". There will be judges, black and white, men and women, who qualify on both the technical and the other tests. Neither technical qualification nor any of the other qualities are exclusively possessed by one group.
I would hazard a guess that if we applied this approach consistently, the result might well be more reflective of our demography – without any recourse to section 174 (2). Black and female applicants, not only possessed of the requisite technical legal knowledge but whose jurisprudential imagination, born of their life experience and ability, would continue to comprise the most significant portion of the appointments. It would also ensure the appointment of white applicants who are not only forensically excellent but who possess years of commitment to justice for all and whose legal values were tested in the cauldron of apartheid.
Transformative constitutional vision
To the extent that all appointments involve a prediction, this record would provide confidence that appointees are committed to the transformative constitutional vision as vindicated by our courts.
Assuming, after completion of this process, that the Bench remains skewed in favour of white men, section 174 (2) is then triggered. Its purpose is to ensure that the journey towards a judiciary broadly reflective of our demography continues. In practical terms, if the scoring of those who were appropriately qualified produced a result subversive of the goal of broad representivity, race and gender may then be employed to give higher scores to some who rank lower on qualifications.
By viewing section 174 (2) as a second, albeit important, order to the inquiry, the emphasis remains on judges who will best implement the transformative ambition of the Constitution. I accept that our Constitution is subject to different readings. But an applicant who advocates, for example, a reading in line with the economic policy of the Republican "Tea Party" (in which the state plays no meaningful role in promoting the welfare of the citizenry) should struggle to persuade the JSC of his or her qualification. A Bench broadly representative of our demo-graphy and fiercely committed to the vindication of the constitutional ambition must be the goal.
This approach may also help to curb the overwhelming enthusiasm of some to measure qualification almost exclusively against the London Bar or British Bench. That our advocates can and should learn from the training programmes offered by the London Bar is not in dispute, but the ambition of the Constitution should compel us to be less restrictive in our search for comparative inspiration. A number of South American countries have much to offer, despite the differences in legal culture. Yet, with some glorious exceptions our law schools, which should contribute to substantive conceptual legal change, reflect much of the same myopia: once the body of apartheid legislation was repealed it was business as in the past. Curricula and research have changed only at the margins. Judicial appointments are controversial all over the world. In our case, a principled debate can only assist the JSC in the difficult task of ensuring a judiciary that continues to do justice for all in this country.
Dennis Davis is the judge president of the Competition Appeal Court