Kriegler, Freedom Under Law to tackle JSC

2013-04-14 14:00

Merit trumps transformation, says former ConCourt justice

Former Constitutional Court Justice Johann Kriegler says merit should trump transformation when the Judicial Service Commission (JSC) appoints judges.

And he’s willing to go to the country’s highest court to prove it.

Freedom Under Law, the rights organisation started by Kriegler, is again threatening the commission with legal action after a week of controversial judicial interviews.

In an interview with City Press yesterday, Kriegler said the reported proceedings of the JSC would leave anybody who cared about the rule of law with a “very, very uneasy feeling”.

News that Advocate Izak Smuts had resigned from the commission on Friday sent shock waves through the legal profession.

Veteran struggle and human rights lawyer George Bizos, who was appointed to the JSC by Nelson Mandela and served on it for 15 years, would say only that he was “saddened”.

Bizos said the JSC of today was going about its business in a “substantially” different manner to the body he’d served on.

Last Sunday, City Press published details of a discussion document in which Smuts argued that the JSC should inform white male candidates not to apply if it was set against their appointment.

Smuts, who usually asks tough questions of all candidates before the JSC, did not ask a single question during the 24 interviews the commission conducted this week.

Following the final interview on Friday, he said it had become “devastatingly clear” to him that his understanding of the “constitutional role and duty of the commission” was so far removed from that of the “majority of the commission” that he was forced to resign.

Smuts cited the names of several candidates who had not been appointed or promoted by the JSC.

The list included Supreme Court of Appeal Judge Azhar Cachalia and Advocates Geoff Budlender, Willem van der Linde, Torquil ­Paterson, Jeremy Gauntlett and, in last week’s round of interviews, Judge Clive Plasket.

A senior advocate of the Johannesburg Bar told City Press that while the JSC did indeed appoint white males, the problem was that “they don’t pick the ones who are the most exceptional and the most talented. What that speaks to is not a white male issue ... It’s that the JSC has embarked on a calculated campaign to keep progressive, ­independent-minded judges off the country’s highest courts”.

Smuts’ discussion document sparked a debate about the weight that should be attached to merit and transformation in the appointment of judges.

In a press conference on Monday, Chief Justice Mogoeng Mogoeng said it was “not even a constitutional requirement that you must appoint the best of the best”.

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

In this matter, two sections of the Constitution are relevant.

Section 174(1) requires appointed candidates to be “appropriately qualified”, and “fit and proper”.

Section 174(2) also ­requires the JSC to be mindful of the need for the judiciary to “reflect broadly” South Africa’s racial and gender composition.

Kriegler yesterday told City Press that Freedom Under Law would consider asking the Constitutional Court for a declaratory ­order to clarify which of these two provisions was the primary consideration.

“If you elevate subsection 2 to the primary one or being of equal importance, you are not acting in terms of the Constitution,” he said, adding that only in cases where “all other things are more or less equal”, should the JSC appoint a candidate from a disadvantaged background.

He said Freedom Under Law would also consider legal action ­related to the way Smuts was ­treated by the commission.

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