Appointing judges not about merit alone – Mogoeng

2013-04-09 19:35

When it comes to the appointment of judges, it’s “not all about merit”, Chief Justice Mogoeng Mogoeng has said.

“Merit does count, but it is not all about merit. Transformation is just as important,” he said.

Mogoeng was speaking at a press conference after a day of Judicial Service Commission (JSC) interviews which saw South Gauteng High Court judges Nigel Willis and Halima Saldulker being recommended for appointment to the Supreme Court of Appeal (SCA).

The press conference today was called after City Press on Sunday quoted excerpts from a JSC discussion document by

Advocate Izak Smuts, a commissioner who represents the advocates’ profession, which stated that the JSC should inform white males they need not apply if it was set against appointing them.

Smuts said he believed such a position to be unconstitutional and said the JSC should guard against perceptions that it was pursuing a covert political agenda.

Mogoeng today said “appropriately qualified persons, men and women of all races, who are fit and proper, are encouraged to accept nomination for appointment as judicial officers”.

He said white males are regularly recommended for appointment and added that the JSC had never pursued a “so-called covert political agenda”.

In response to a question from the media, Mogoeng said he didn’t understand constant concerns about political interference in the appointment of judges.

“I dare say, there are very few constitutional democracies that have gone out of their way to have a body that recommends judges for appointment constituted in the way the South African body is.

“Go to America, go to Germany, go to Russia, go to the UK, it is a politician’s work, so the question of political influence does not even feature,” said Mogoeng.

The announcement today means that the JSC has again passed over Judge Clive Plaskett for appointment to the SCA.

Plaskett, despite being interviewed by the JSC last year, faced a tough interview about transformation and judicial appointment which lasted an hour and forty minutes.

Plaskett was grilled by commissioners Fatima Chohan-Khota, Dumisa Ntsebeza and Ngoako Ramathlodi about the Supreme Court of Appeal’s judgment, which declared the JSC’s decision to leave open vacancies on the bench of the Western Cape High Court – when there were four white, male senior counsel available – irrational.

In her interview, SCA president Lex Mpati put statements to Saldulker about her performance as an acting judge in the SCA.

“The comment that was made was that you don’t make the contribution that is expected of you during hearings and your judgments have to be worked on during hearings of the panel,” said Mpati.

Saldulker responded that “all candidates must be given a chance to grow and develop, it’s all part of the transformation process”.

Mpati also quoted comments from the General Council of the Bar that Saldulker had a “paucity of judgments”.

Willis had an easier time than expected in his interview.

A judgment written by Willis in which he criticised a decision of the Constitutional Court – which overturned one of his rulings – did not attract as much flak as expected from the JSC.

Willis explained that he was “very annoyed” in the way he was treated.

“To say of another judge he ‘ignored’ the provisions of (legislation) is highly offensive,” said Willis.

The JSC also conducted interviews for a position on the electoral court, but did not recommend anybody for appointment.

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