JSC taken to court over black, women judges

2013-06-09 08:00

The Judicial Service Commission (JSC) is again being taken to court over its stance about the appointment of black and women judges.

The Helen Suzman Foundation (HSF) has launched a court application in the Western Cape High Court in which it argues that the JSC has a “legally flawed” understanding of how to effect transformation in the judiciary.

The HSF has asked the court to make an order declaring the JSC’s decision not to recommend Advocate Jeremy Gauntlett for appointment to the Western Cape High Court bench irrational, although the HSF is not asking to have the JSC’s decision set aside.

HSF Director Francis Antonie says this is because the case is not about Gauntlett, but about the JSC following constitutional methodology in appointing judges.

“There have been some appointments which are curious ... and there have been some omissions which are striking.

“But (Gauntlett’s case) has to my understanding been the first time and the only time that the JSC gave reasons,” said Antonie.

He was referring to the fact that lawyers appointed by former Supreme Court of Appeal Deputy President Louis Harms, who nominated Gauntlett, wrote to the JSC asking for reasons for his non-appointment last year.

The JSC does not usually make these reasons public.

In it’s response to Harms’ lawyers, the JSC said it had doubts about Gauntlett’s “humility and judicial temperament” and expressed the belief that appointing two white males would do “violence” to section 174(2) of the Constitution.

This section provides that there is a need for the judiciary to reflect the broadly the racial and gender composition of South Africa.

But the HSF is arguing that the fact that the judiciary does not reflect the demographics of the country can never be an insurmountable obstacle to “the JSC advising the appointment of a white and/or male candidate”.

The HSF is arguing that the race and gender of a particular candidate can only ever form part of a “basket of relevant considerations, in respect of which the JSC must meaningfully apply its mind”.

The balance between the constitutional requirements that the judiciary “broadly reflect” the demographics of the country and the requirement that an “appropriately qualified” and “fit and proper” person have often caused a stir with the JSC.

In April this year, the subject was the topic of furious debate after Advocate Izak Smuts sent an internal JSC discussion document to the media in which he argued that the JSC made inexplicable recommendations when race was not a factor between candidates.

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