‘The JSC should do what Afrikaners did’

2013-06-16 10:00

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The Judicial Service Commission (JSC) should be able to do what the Afrikaners did in the “old days of apartheid”.

This was the message from the Higher Education Transformation Network this week, which wants to add its voice to a court battle over the weight the JSC attaches to transformation when nominating judges for appointment.

The Helen Suzman Foundation (HSF) is taking the commission to court over what it calls the JSC’s “legally flawed” understanding of the role transformation should play in the process.

But according to the network’s chairperson, Lucky Thekisho, they have instructed their lawyers to have them admitted as a friend of the court, because the HSF needs to respect the fact that South Africa is “a democratic country where the will of the majority must be respected”.

Thekisho said: “We think the JSC has done a marvellous job and it must be given that opportunity in terms of trying to bring some change in the judiciary.

“In the old apartheid days, I’m sorry to say, but Afrikaners gave each other an opportunity to be where they are today. Why can’t we do that, as long as we’re in line with the Constitution?”

For Thekisho, transformation must be the primary concern of the JSC.

“The issue of transformation must not be taken over the issue of fit and proper,” he said.

Reginald Legoabe, the network’s executive director, added that the court action risks the “legitimacy of a constitutionally created institution”.

He said: “In a democratic society, you do not question an institution of justice. If you do that, you’re starting to chip away at the legitimacy of our judicial structures.”

But according to Francis Antonie, the HSF’s director, the network has “misunderstood the court action”.

He said: “The case is about asking what is going on within the JSC, where it might need guidance from the courts. If there’s legal uncertainty about the process of the nomination of judges, then I think all good constitutionalists and democrats would say let’s get certainty from the courts about how the JSC should run its business.”

Antonie explained it was the function of the judiciary to interpret the Constitution, saying it was “desirable for the courts to make a declaration and to rule on the relative merits (of transformation)”.

He further said: “Please don’t for one second think that the argument is against transformation.”

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

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