JSC faces ‘very difficult’ task

2013-04-17 08:37

A retired Justice of the Constitutional Court has said some decisions of the Judicial Service Commission (JSC) have caused “a great amount of dismay” in the legal profession.

Justice Kate O’Regan, who served a full term of 15 years on the Constitutional Court, yesterday told the international Commonwealth Law Conference in Cape Town that the JSC has struggled with a “very difficult” task of finding a balance between the constitutional requirements for judicial candidates to be appropriately qualified, fit and proper and for the demographics of the bench to reflect society.

“One can see that in a South Africa with deep patterns of racial exclusion and disadvantage the question of how to balance these three requirements ... is something upon which people would often disagree,” she said.

O’Regan, who was appointed to the Constitutional Court by former president Nelson Mandela, said it disturbed her that people thought there was one right answer to this question.

She said that a “great amount” of dismay had been caused by decisions of the JSC in instances where transformation did not arise, such as when two black females or two white males were up for appointment.

“The JSC will then select somebody who is less experienced than somebody else, then there is disquiet in the legal community,” she said.

O’Regan said a pattern had also emerged in the last couple of rounds of JSC interviews, where candidates approached by law societies and NGOs said they “just don’t want to participate in the process” because of fair process concerns.

“I think this is something us South Africans need to talk about,” she said.

O’Regan’s comments come on the back of a turbulent week of JSC interviews, which saw one of the commissioners resigning.

Yesterday, Chief Justice Mogoeng Mogoeng made a controversial speech during the opening ceremony of the conference, in which he warned the media not to “rubbish” the JSC.

O’Regan today said that while South Africa faced challenges, the country’s constitutional test was robust enough.

“Constitutional democracies are often contested and noisy places and South Africa is no different.”

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