JSC urged to ‘come clean’ about bias

2013-04-08 00:00

A TOP silk who serves on the Judicial Service Commission (JSC) wants his fellow commissioners to “come clean” today and tell white male candidates that they need not bother applying to become judges.

Commissioner Advocate Izak Smuts SC is due to present a document at a closed meeting of the JSC today in Cape Town.

Judicial transformation continues to be a hot potato, as was recently the case in KwaZulu-Natal, with the appointment Achmat Jappie as Deputy Judge President.

While the JSC recommended Jappie as far back as October to be Judge President Chiman Patel’s deputy, it was only four months later in February that President Jacob Zuma finally appointed him.

This came amid unhappines within some sections of the the legal and political community that the leadership of the province’s highest court did not include a black African judge.

Smuts’s document follows the failure of Advocate Jeremy Gauntlett SC to be appointed a judge in February — the fifth time he has been passed over.

In the document, Smuts says: “One way or the other, the JSC must deal with the uncomfortable perception that the graffiti on its wall reads ‘white men can’t judge’.”

He argues that “the JSC ought to have an honest debate about its ­approach to the appointment of white male candidates.

“If the majority view is that … white male candidates are only to be considered for appointment in exceptional circumstances, the JSC should, at the very least, come clean and say so, so that white male candidates are not put through the charade of an interview before being rejected.”

Smuts is viewed as a crusader in the legal profession. He recently quit as deputy chair of the General Council of the Bar over the council’s position on the Legal Practice Bill.

His comments come against the backdrop of increasing criticism and questions around the JSC’s appointment of candidates.

In his discussion paper, Smuts also raises the spectre of a “covert political agenda” by the JSC.

In April last year, Advocate Wim Trengove told the Mail&Guardian there was an impression “the political component of the ANC [on the JSC] wields far greater influence than in the first five years”.

Smuts will tell the JSC the word “transformation” appears in no statutory provision relating to the JSC, including the Constitution.

The Constitution only provides for the “need for the judiciary to reflect broadly the racial and gender composition of South Africa”, Smuts argues.

JSC spokesperson Advocate Dumisa Ntsebeza SC said the document was due to be discussed by the JSC today.

Other issues on the agenda are whether prosecutors and state advocates should be allowed to serve as acting judges.

Gender transformation will dominate from tomorrow, as the JSC seeks to fill 11 vacancies in the country’s superior courts.

Of the high courts, only the North West is headed by a woman, Judge President Monica Leeuw.

In March 2011, the number of African judges (98) for the first time surpassed that of white judges (90). In fact, the number of white judges has shrunk by 30% when compared with 2005.

In that year, 30% of judges were women, which this year dropped to just 28%.

In this week’s round of interviews, 14 of the 23 potential candidates are women.

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