Which white judges?

2013-04-21 14:00

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Debate about racial transformation is just a distraction, writes an advocate

The past two weeks have seen a heated public debate about transformation in judicial appointments.

But most of the debate has missed the point. The track record of the Judicial Service Commission (JSC) reveals that it does not refuse to appoint white men as judges. Indeed, numerous white men have been appointed, and continue to be appointed, by the JSC.

The real problem is different and far more damaging.

Despite appointing many white men as judges, the JSC often refuses to appoint those candidates who are the most skilled, independent and progressive. That is a major cause for concern.

The problem is starkly demonstrated by the recent JSC decision to appoint Judge Nigel Willis to the Supreme Court of Appeal (SCA) ahead of Judge Clive Plasket.

Plasket is a white man and a judge of many years’ standing. He worked at length as a lawyer at the Legal Resources Centre under apartheid.

He is extremely well-regarded for his academic work on administrative law.

He has already served a number of terms as an acting judge on the SCA.

His judgments, dealing with issues such as social grants, the right to education and other issues, demonstrate a constant concern for the poor and a nuanced understanding of constitutional values.

Though many of his decisions have been considered by the Constitutional Court and the SCA, no court has ever engaged in significant criticism of him. In short, it is hard to imagine anyone better qualified.

Willis is also a white man and a judge of many years’ standing. Prior to being a judge, he was an advocate at the Johannesburg Bar. He has never before acted in the SCA, though he was due to act in May of this year.

In contrast with Plasket, Willis has faced severe criticism from the Constitutional Court. Most notably, in 2008, Willis ordered the eviction of 62 families from their homes in a building in Johannesburg. He allowed them to appeal to the SCA, but in an unprecedented step, directed that the eviction proceed shortly before Christmas, even while they were prosecuting their appeal.

Willis’ judgments in that matter were later overturned, on constitutional grounds, by a unanimous Constitutional Court, which held that Willis’ failure to have regard for the Prevention of Illegal Evictions Act was “inexcusable” and, on company law grounds, by a unanimous SCA.

Willis has since taken every possible opportunity – including judgments in unrelated cases and a letter to a newspaper – to stand by and defend his overturned position.

He described the judgment of the Constitutional Court as “one of the great unfathomable mysteries of my life”. Moreover, in a 2010 judgment, Willis went out of his way to explain that he considered that making evictions and the dismissal of employees more difficult was damaging to society.

In short, Plasket has demonstrated a lifelong commitment to the transformative, pro-poor values of our Bill of Rights.

Willis has made clear that his judicial and economic philosophy is fundamentally at odds with those values.

Plasket, thus, should have been a shoo-in for the SCA. But instead, 10 days ago, the JSC opted to overlook him (for the second time) to appoint Willis instead.

Given that both candidates are white males, this has nothing to do with transformation.

Transformation was not mentioned during the JSC interview of Willis – whereas Plasket (unfairly and inexplicably) was grilled for more than an hour and a half on the subject.

Plasket was also, quite improperly, castigated by the JSC for holding the view that a recent SCA judgment against the JSC was correct as a matter of law.

Willis was not asked at all about the judgment.

Only one conclusion can be drawn: The JSC is prepared to appoint white males, but not when they are best known for having the independence to rule against government when it violates the Constitution.

Plasket is undoubtedly that kind of a judge.

By contrast, Willis, during his interview, expressly suggested a far more restrained approach to judicial power. (Whether he, in fact, adopts such an approach on the SCA, particularly on progressive legislation and conduct, remains to be seen.)

Moreover, the failure to appoint Plasket is consistent with a series of decisions refusing to appoint the most well-regarded white male applicants, some of whom have strong progressive credentials.

Nor is the problem limited to white men. President Jacob Zuma’s repeated refusal to appoint Judge Mandisa Maya is just as bad.

Maya is a black, female judge on the SCA with vast experience, and who is universally acclaimed for her fairness and ability. The president’s failure, twice, to appoint her to the Constitutional Court is simply inexplicable.

It is very damaging that the judicial candidates who are most qualified and dedicated to the values of our Constitution are failing to get appointed.

That is what we should be writing and talking about – not the mythical refusal to appoint any white men.

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