JSC gears up for heated debate on transformation

A HEATED debate can be expected when the Judicial Service Commission (JSC) meets today, after one of its commissioners questioned its approach to the appointment of white men as judges.

The JSC will spend this week interviewing candidates for the Supreme Court of Appeal, and various high courts. However, one of the items to be discussed at today’s meeting is an internal discussion document, drafted by commissioner Izak Smuts SC, on transformation, an issue that has been the subject of passionate debate for many years.

The fact that the JSC asked Mr Smuts to prepare the document signifies a willingness to examine itself, as criticism over its decisions grows. But sources said some of his remarks are sure to have annoyed some members of the commission.

In the document, Mr Smuts said there was a “very real perception in certain quarters” that the JSC was “set against” the appointment of white male candidates, except in exceptional circumstances.

He said this perception was not helped by a court judgment last year, referring to the bruising defeat for the JSC when the Supreme Court of Appeal held as irrational its decision in April 2011 to leave vacancies on the Western Cape bench open — despite there being a number of clearly qualified candidates, including the renowned Owen Rogers SC. Mr Rogers (now a judge) was later interviewed and recommended for appointment, but in that same round Jeremy Gauntlett SC, also considered one of the best lawyers in the country, was overlooked — to much outrage.

During the court case, the JSC insisted that the only reason it was leaving the vacancies open was that those candidates who were not appointed had not secured a majority of votes. The JSC did not say that its decision was based on race representivity considerations.

But Mr Smuts said: “If there were reasons other than the race and gender of those available, fit, proper and suitably qualified candidates for failing to fill the vacancies, they have not been publicly articulated.”

He said the JSC ought to have an honest debate about its approach to the appointment of white male candidates. “If the majority view is that,

for the foreseeable future, white male candidates are only to be considered for appointment in exceptional circumstances (an approach I consider to be unlawful and unconstitutional), the JSC should … come clean and say so, so that white male candidates are not put through the charade of an interview before being rejected.”

A source close to the commission said he was “baffled” by what Mr Smuts was reported to have said, because the JSC’s approach had always been the same — that the commission must look at all the requirements together.

He said Mr Smuts had lost sight of SA’s history. To achieve nonracialism — as set out in the founding values of the constitution — required a recognition that, for years, black lawyers were prevented from becoming judges by law.

A balance had to be found and it was not easy, he said. But there had never been a single session of the JSC at which no white men had been appointed.

Another source close to the JSC put it even more bluntly, saying Mr Smuts was “way off the mark”.

In the document, Mr Smuts acknowledged that at the advent of democracy the JSC faced a challenge in that the judiciary was almost totally white and male. While significant strides had been made in making the judiciary more representative, the number of women judges remained “pitifully small”, he said.

A further challenge was that, despite there being numerous excellent lawyers from historically disadvantaged groups, it was “not always the most skilled and experienced candidates who have made themselves available for judicial appointment”.

He said the JSC was not required by the constitution to promote black and women candidates as a matter of course. It was required to consider the need for a representative judiciary, and it would fail in its duty if it did not consider other vital issues, such as experience, expertise and the specific needs of particular courts, he said.

JSC spokesman Dumisa Ntsebeza SC said he would not comment until the JSC had discussed the document.