A South African Kavanaugh could be a reality

Brett Kavanaugh. Photo: Reuters
Brett Kavanaugh. Photo: Reuters

If, like me, you were enthralled by United States (US) Supreme Court nominee Brett Kavanaugh's angry tirade before the Senate Judiciary Committee last week, you may well have considered how likely such a scenario could be here in South Africa and the hypothesis of how our legal system would have dealt with a similar situation. 

How realistic is it that we could have a Constitutional Court nominee facing a similar allegation? And let's say Kavanaugh was a candidate for the Constitutional Court and an historic allegation of sexual assault surfaced. Would it have an impact on his likelihood of being appointed? Would there be wall to wall coverage by local news outlets? Would it be such a polarising, adversarial, politicised process? 

Mulling this over, I set about asking legal journalists, lawyers and judges to consider this possibility.

If you've been in a black hole of local news consumed by state capture and SARS inquiries, here's the distilled summary of the Kavanaugh affair. President Donald Trump nominated him to fill Anthony Kennedy's vacant post at the US Supreme Court (SCOTUS). During the confirmation process, Kavanaugh was accused of sexually assaulting Dr Christine Blasey Ford 36 years ago, while they were both in high school in 1982. 

Blasey Ford was called to testify before the Senate Judiciary Committee last week and Kavanaugh then responded. It was a messy affair and Kavanaugh railed against the process, dropping any pretence of impartiality.

Electing a judge to the ConCourt 

The first and obvious point to make when considering my hypothesis is just how different the processes are for appointing a judge to Braamfontein and to SCOTUS. Interviews for the ConCourt are done by the Judicial Service Commission (JSC) in the same way other judges' interviews are done. People are nominated and then public comments can be received by the JSC and questions are put to candidates. 

The JSC consists of 23 members, including politicians and lawyers, some of which are appointed by the president. The members include the chief justice, the president of the Supreme Court of Appeal (SCA), one judge president designated by the judges president, the justice minister, two practicing advocates nominated from within the profession, two practicing attorneys nominated from within the profession, one teacher of law, six members of the National Assembly including three from opposition parties, four members of the National Council of Provinces and four people designated by the president after consulting the leaders of all the parties in the National Assembly. 

The JSC is constitutionally mandated to interview candidates for judicial posts and make recommendations for appointment to the Bench. Hearings are usually held at a swanky Atlantic seaboard hotel in Cape Town and last a couple of hours – the exception being when Chief Justice Mogoeng Mogoeng spent two days answering questions during a televised hearing because the legal fraternity was up in arms about his nomination. 

It's a much less partisan process and witnesses aren't called to give evidence, like Ford did in the US. It is not nearly as politically hostile, but interviews can be intense. While it is not nearly as combative as the US process, opposition politicians who sit on the JSC have in the past been known to ask testing and difficult questions and it is not unusual for a candidate's past skeletons to be dragged in to the room. 

JSC acts as filter

Over the past few years, the interviews have become increasingly politicised, according to one senior politician I spoke to. "It's changed. It's become more robust and more politically polarised," they explained. However, it's not quite as overt as in the US where it's quite common to define a Supreme Court judge as "progressive", "conservative" or "moderate" with a particular political leaning. Here we still maintain a culture of judges having no political leaning and being neutral or independent. At least, that is how it is supposed to be. 

If the JSC received a complaint about a nominee, there would be nothing to prevent members from asking the hard questions. As far as I could ascertain, an allegation of sexual assault against a candidate has not yet been levelled during a JSC hearing although many I spoke to suggested that this should be qualified with a "yet". The likelihood is not far off. 

In the process of appointing High Court and SCA judges, the president merely rubberstamps candidates who are chosen by the JSC. In the case of justices of the Constitutional Court, the president has a discretion. The JSC provides a shortlist of four candidates from which the president picks one. 

So the function of the JSC is really to act as a filter to screen candidates so that the wrong ones don't get appointed. For example, had former Pretoria High Court judge Mabel Jansen been quizzed about race during her interview, the scandal which saw her resigning amidst controversy could potentially have been avoided. 

How heavy would sexual assault weigh?

The second issue to consider is just how much weight an allegation of sexual assault, such as in the case of Blasey Ford, would carry in a JSC interview and whether the volume of media and public outrage would be ramped up in the way that it has in the US. 

In the age of #MeToo, many local legal commentators suggest that the JSC and ConCourt would take the matter very seriously. It's extremely topical and there would be no tolerance for such an offence.

Again, let's consider the hypothesis that Kavanaugh is being interviewed for the ConCourt and an allegation surfaces against him. Once he is nominated, anyone can object and the candidate is usually informed beforehand. 

The complaint would then be dealt with at the hearing. A senior legal practitioner suggested to me that "perhaps the judge president who knows those who are nominated would do some preliminary investigation and if he or she believed it was true, they would encourage the person to withdraw".

In other words, they would work behind the scenes to avoid a public scandal that could tarnish the image of the judiciary in the way that the Kavanaugh drama has marred the integrity of the SCOTUS. Also, what impact would the culture within the local legal fraternity have on the weight of such a complaint?

A number of senior lawyers I spoke to made mention of just how rampant sexual harassment is at the Bar. In an article written for Advocate, the official journal of the General Council of the Bar, Judge Sharise Wiener highlights this issue. 

"It is the obstacle called the 'Imperative of Silence' around sexual harassment. Let me put it bluntly, sexual harassment is rife at the Bar. In an informal survey which I did amongst young women at the Bar, 70% of them admitted to having been sexually harassed. The Johannesburg Bar Council, and I assume others, have now introduced sexual harassment policies, but what one wonders is whether that will make any difference. As far as I could ascertain, despite the fact that such harassment permeates the profession, no one at the Johannesburg Bar has been charged with sexual harassment and very few women come forward even to tell their seniors or colleagues about it. 

Participants in the CALS research stated that there is insufficient understanding of the range of behaviours that constitute sexual harassment and a lack of understanding of the manner in which it impedes advancement. Women do not come forward because they fear that being too vocal will rock the boat and they will be seen as a troublemaker. This creates a system in which there is sexual harassment but no consequences. Because there is little, if any, relief for the victims of sexual harassment, the Imperative of Silence remains. Quite simply complaining about sexual harassment is seen as a career limiting move.

One participant noted: 'If you could get women to tell their stories of the Bar you would be shocked.'

And let me tell you I have heard their stories and I am shocked.  Men, on the other hand, on the whole do not have to worry about this. Unfortunately, the ethos of toxic masculinity is manifest in this sphere."

Another female advocate told me anonymously, "Sex for briefs is definitely a thing! It's disgusting. The Bar and the judiciary is a misogynistic, patriarchal boys club." 

All of this suggests, that the potential of a Kavanaugh type scandal is not as far off in South Africa as we may think. It will be fascinating to watch how the JSC handles it when, and not if, it raises its ugly head.

- Wiener is an investigative reporter for News24.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24

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