Women in ConCourt: It’s the president’s doing, says Zak Yacoob

2013-10-09 16:18

Presidential decision making was behind the low number of women being appointed to the Constitutional Court, former Justice Zak Yacoob has said.

The reason few women had been appointed was the “president’s alone”, he said in response to a question during the Ahmed Kathrada Foundation’s annual conference in Johannesburg.

He said the Judicial Service Commission (JSC) nominated a short list of names for the president to choose from.

According to the Constitutional Court’s website, only four of its 24 justices since 1994 have been women.

Yacoob questioned how much influence the ANC and the executive should have in the nomination and appointment of judges.

“It is not enough to ask: ‘Should the executive have a say?’ In the circumstances, do they have too much say?

“I wonder, for example, (how many) of the JSC truly believe that gay and lesbian people have a right to exist in our country?”

Asked about the role of the judiciary, Yacoob said judges had no obligation to agree with the executive.

“Judges have no obligation in a developmental and constitutional state to say the executive is right,” he said.

Supporting the executive was in fact contrary to the notion of a developmental and constitutional state.

Regarding the judiciary’s understanding of transformation, Yacoob lamented that judges were not being adequately educated on the subject.

“The problem with much of the judiciary here is they ... hardly have an opinion on transformation.”

Yacoob said transformation was “very important for our society”.

Earlier, he told the conference that a problem within the judiciary under apartheid was that most judges were racist, sided with authority and were affected by appearances.

“Judges in those days judged in favour of authority,” he said.

“... The rich and poor were certainly not treated equally in our courts ... and were not judged equally. There was a great deal of arrogance and rudeness.”

He urged judges today to apply their duties with more humanity, as they were judging human beings and they should embody the values of the Constitution.

However, given past tendencies of the judiciary, even though the majority of judges now on the Bench were appointed after 1994, some judges were still being appointed who were “guilty of the weaknesses of the past”.

“I’m afraid judges have been appointed from both sides of the divide and we should try to make sure we have some kind of reconstruction at that level,” he said.

“Everybody must be treated equally. The values of the Constitution are supreme ... The government is not supreme at all, the Constitution is.”

The appointment of judges who still favoured authority was the beginning of a slippery slope.

As such, judges before the JSC should be quizzed on constitutional and parliamentary supremacy, and the distinctions between the two.

“All law, including the common law, has to be consistent with the Constitution. In a sense, our judiciary would improve if there is a concerted effort to square our common law with the Constitution.”

Judges needed to start judging in a new way, and while a measure of formality was needed, it should not be overemphasised to the detriment of justice, he said.

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