White men can be judges

2013-04-10 00:00

CHIEF Justice Mogoeng Mogoeng insisted yesterday that it was “not all about merit” when it came to appointing judges and that transformation was equally important.

“Merit does count, but it is not all about merit, transformation is just as important,” he told a press conference.

Mogoeng was speaking after a day of Judicial Service Commission (JSC) interviews which saw South Gauteng High Court Judges Nigel Willis and Halima Saldulker recommended for appointment to the Supreme Court of Appeal.

The press conference followed a leak to sister newspaper, City Press, of a JSC discussion document by commissioner Advocate Izak Smuts SC, in which he urged the commission to “come clean” about whether white candidates still had a chance to be appointed to the Bench.

The issue was discussed at Monday’s meeting of the JSC, where several commissioners pointed out that white male candidates were in fact being appointed.

In his reaction, Mogoeng told reporters that “appropriately qualified persons, men and women of all races, who are fit and proper, are encouraged to accept nomination for appointment as judicial officers”.

He also said white men were regularly recommended for appointment and added that the JSC had never pursued a “so-called covert political agenda”, as implied in Smuts’s document.

In reply to a question from the media, Mogoeng said he did not understand constant concerns about political interference in the appointment of judges. “I dare say, there are very few constitutional democracies that have gone out of their way to have bodies that recommend judges for appointment constituted in the way the South African body is.

“Go to America, go to Germany, go to Russia, go to the UK, it is a politician’s work, so the question of political influence does not even feature,” said Mogoeng.

The announcement means that the JSC has again passed over Judge Clive Plaskett for appointment to the Supreme Court of Appeal.

Despite being interviewed by the JSC last year, Plaskett faced a tough interview on transformation and judicial appointment, which lasted for an hour and 40 minutes.

Plaskett was grilled by commissioners Fatima Kota (deputy minister of Home Affairs), Advocate Dumisa Ntsebeza SC and Correctional Services deputy minister Ngoako Ramathlodi. Among the issues canvassed was the Supreme Court of Appeal judgment, which declared the JSC’s decision to leave open vacancies on the bench of the Western Cape High Court “irrational” — when four white, male senior counsel were available.

In contrast, judges Nigel Willis and Halima Saldulker were both interviewed for less than an hour and were not asked as many tough questions.

Supreme Court of Appeal president Lex Mpati put statements to Saldulker about her performance as an acting judge in the SCA. “The comment that was made was that you don’t make the contribution that is expected of you during hearings and your judgments have to be worked on during hearings of the panel,” said Mpati.

Saldulker responded that “all candidates must be given a chance to grow and develop, it’s all part of the transformation process”.

Mpati also quoted General Council of the Bar comment that Saldulker had a “paucity of judgments”.

Willis also had an easier than expected time in his interview. A judgment written by Willis in which he criticised a decision of the Constitutional Court — which overturned one of his rulings — did not attract as much flak as expected from the JSC.

Willis explained that he was “very annoyed” at the way he was treated.

“To say of another judge he ‘ignored’ the provisions of [legislation] is highly offensive,” said Willis.

The JSC also conducted interviews for a position in the electoral court, but did not recommend anybody for appointment.

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