White men can be judges in SA, says JSC

THE Judicial Service Commission (JSC) yesterday sought to put an end to the furore over judicial transformation, insisting it often appointed white judges.

The row followed an internal discussion document written by JSC commissioner Izak Smuts SC which had questioned the JSC’s approach to the appointment of white men as judges. In it, Mr Smuts referred to a “very real perception in certain quarters” that white men would only be appointed in exceptional circumstances.

He suggested “an honest debate” on the issue and said if that were to be the JSC’s position it should come clean and say so.

The JSC is meeting in Cape Town this week to interview candidates for appointment to the Supreme Court of Appeal and various high courts.

The document, commissioned by the JSC last year, was circulated to the media beforehand.

Chief Justice Mogoeng Mogoeng yesterday told media the document was part of continuous reflection by the commission “on its constitutional responsibilities and its adherence thereto”.

He said the JSC viewed the release of the document as “unfortunate”, and an “error of judgment” on the part of Mr Smuts. “For this he has apologised,” Justice Mogoeng said.

After a long and “robust debate”, the JSC “reaffirmed” that it was guided by the constitution, which required it to consider SA’s racial and gender composition.

In response to questions, he said the criteria used by the JSC were the same as those formulated under late chief justice Ismail Mahomed.

These criteria had been used “consistently under the chair- manship of the late chief justice Arthur Chaskalson and former chief justices Pius Langa and Sandile Ngcobo”.

He said white men were in fact regularly recommended by the JSC and he encouraged “appropriately qualified persons, men and women of all races”, to continue to accept nomination.

As if to confirm this, the JSC then announced that it had recommended judges Halima Saldulker and Nigel Willis, a white male candidate, for appointment to the Supreme Court of Appeal.

THE Judicial Service Commission (JSC) yesterday announced it would recommend South Gauteng High Court judges Nigel Willis and Halima Saldulker for appointment to the Supreme Court of Appeal, again overlooking Eastern Cape High Court Judge Clive Plasket.

The JSC is meeting in Cape Town to interview candidates for the appeal court and various high courts.

It was expected that Judge Saldulker, the only woman and the only black candidate in this round, would get the nod. But prior to the interviews lawyers spoken to by Business Day all said that the chances of Judge Willis being chosen over Judge Plasket were slim, to none.

However, the contrast between the interviews of the two candidates was pronounced.

While Judge Willis’s interview was a mostly relaxed, even jolly, 40minute affair, Judge Plasket’s interview, which went on for almost two hours, was a grilling. He was closely scrutinised on judicial transformation, a topic that was the subject of a “lengthy and robust” debate behind closed doors on Monday.

Responding to a question by commissioner Dumisa Ntsebeza SC, he said that in a case where it was merit versus potential, it was a matter of balancing the competing interests. But for it to be rational, there needed to be ascertainable criteria and that such criteria needed to be applied in a way that was predictable.

Where there were no black or women candidates available, but there were suitable qualified white men available, it would not be rational to leave posts vacant, Judge Plasket said.

Chief Justice Mogoeng Mogoeng suggested that, based on that logic, if there were to be no black or women candidates, the bench would never be transformed. To which Judge Plasket replied that such a scenario was so unlikely that it made it impossible for him to answer.

Commissioner Vas Soni SC said Judge Plasket’s response was “very interesting” because the reason the bench had transformed as much as it had was precisely because the JSC had taken a different position.

When asked if he had anything further to add to his interview, Judge Plasket said that for most of his interview he had been dealing with issues not relevant to his track record as a judge and while he was happy to deal with them, he asked the commission to look at his judgments.

But this in turn elicited a flurry of responses from commissioners, who said that the questions they had asked were relevant.

While Judge Plasket had acted on the Supreme Court of Appeal for 18 months in total, Judge Willis told the commission he had never acted on the court, something that has been a sticking point for the JSC before.

But Judge Willis said while that could be a disadvantage, it should not be an impediment.

He said that the same question was asked of him before he was appointed to the Labour Appeal Court and yet he served that court “with distinction”.

Judge Willis was not asked questions on judicial transformation at all. Instead, Judge Lex Mpati asked him about having — in a judgment — responded to a scathing rebuke by the Constitutional Court.

While it was never nice to be criticised by a higher court, Judge Mpati questioned whether a judgment was the correct forum to address it.

Judge Willis said he did not usually do that, but that he had been “very annoyed” by what the Constitutional Court had said because it simply was not true. He still was annoyed, he said.

In Judge Saldulker’s interview, Judge Mpati said her candidacy was not supported by the other judges on the appeal court, who said her judgments needed to be “worked on”. She said all candidates should have a right to grow. “That is all part of the transformation process.”