In the JSC we trust

2013-04-14 14:00

Judicial hopefuls gather in Cape Town to be grilled by the panel

Dear candidate for judicial appointment,

Congratulations on being short-listed for an exciting opportunity as a judicial officer in South Africa.

This short memorandum is meant to prepare you for your upcoming interview with the Judicial Service Commission (JSC).

Don’t panic.

Try to think of the JSC as a wild animal. It is unpredictable and is prone to retaliation when wounded.

The JSC’s temperament – and the likely length of your interview – can be dependent on the last time the body ate.

Those of us who follow the 23 permanent members of the JSC know that its members are ideologically scattered between two main poles.

According to section 174(1) of the Constitution, any “appropriately qualified” woman or man who is a “fit and proper” person may be appointed as a judicial officer.

The “fit and proper” crowd are usually the ones who look for so-called technical excellence.

This includes stuff like writing published articles in law journals, having a long string of university degrees to write behind your name and being involved in important, precedent-setting cases.

Advocate Jeremy Gauntlett is highly fit and proper.

The other pole is section 174(2), which states there is a need for a “judiciary to reflect broadly the racial and gender composition of South Africa”.

The “reflect broadly” guys rightly point out the significant achievements of lawyers and advocates who got law degrees in former homelands, represented political activists against the apartheid government and who have a keen insight into what coming from a disadvantaged background is all about.

If you’ve been thinking that you fit comfortably into one of these two niches, think again.

Judge Clive Plasket this week found out the hard way that being one of two technically proficient (white and male) candidates doesn’t guarantee equal treatment.

Plasket drew a short straw and was the first to be interviewed by the JSC following the leak of an internal JSC discussion document about the appointment of white males.

Candidate, white males are a sore point for the JSC.

It has been this way ever since the Supreme Court of Appeal told the JSC that its April 2011 decision to leave open two spots on the Western Cape High Court when there were four perfectly good white male candidates available was dof (irrational).

On Tuesday, four consecutive commissioners grilled Plasket about the court’s decision for an hour and 40 minutes.

“Do you think a body like the JSC should have its decisions to appoint judges reviewed by a court of law?” asked commissioner and Home Affairs Deputy Minister Fatima Chohan-Khota.

Considering Plasket wasn’t appointed, the correct answer to this was probably “no”, and not as he answered: “Every exercise of public power is subject to review.”

Candidate judges are taught to be creatures of precedent, but as you can see here, Plasket probably would have been better served if he had dissed one of the highest courts in the land the way his opponent, Judge Nigel Willis, did.

Willis, whose interview lasted only 40 minutes, was lightly questioned about a judgment in which he attacked the Constitutional Court for overturning one of his rulings.

Wrote the learned high court judge: “Quite how the Constitutional Court could have come to this conclusion is one of the great unfathomable mysteries of my life.”

Willis defended this in a newspaper and in his subsequent interview, saying he was “very annoyed” at the Constitutional Court and that we all have the right to be “very annoyed” from time to time.

He was eventually appointed, but not before Justice and Constitutional Development Minister Jeff Radebe used the opportunity to show off his command of the German language.

This was after Willis explained that he had done a doctorate in Germany, which was related to science and religion talking to each other.

Superlawyer Gauntlett probably would have noted the appointment with interest because he was lambasted by the JSC in his fifth failed attempt at joining the judiciary last year.

The JSC was unhappy about the unflattering media interviews he conducted with newspapers following the public hysteria after his fourth failed attempt.

Then again, Gauntlett was criticising the JSC for its appointment policy and not the nation’s highest court, as Judge President Dennis Davis did.

Moving from white lawyers to white judges, the JSC this week re-recommended Davis to another five-year term as president of the Competitions Appeal Court.

The judge president was helpful in pointing out that a more nuanced understanding of merit (fit and proper) was needed and warned against “anal constructions of the law” which posited that transformation (broadly reflect) was not part of merit.

And if you are still panicking, try to remember the words of former Constitutional Court justice Zak Yacoob: “The only person who will ever be completely happy with a judicial appointment is the person who is appointed.”

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