What the law says — and means — on the transformation of the judiciary.

IT IS unfortunate that the debate on the transformation of the judiciary conducted recently by the Judicial Service Commission (JSC) took place in secret. Defending the indefensible in secret is surely easier than doing so under the glare of public scrutiny. In a constitutional democracy under the rule of law in which accountability, responsiveness and openness are all foundational values entrenched in the constitution, it is difficult to understand why the JSC chose to conduct its deliberations on a matter of such general importance behind closed doors. The public has had to make do with only the chief justice and the spokesman of the JSC emerging to provide sound bites that enjoyed more publicity around the leaking of the report of commissioner Izak Smuts that served as a basis for the debate than did the substance of the debate. It is hoped the JSC will remedy the situation by providing its response to Smuts’s thoughts rather than excoriating him for his transparency.

The torrid time given to an aspirant judge of appeal, Judge Clive Plasket, in his public interview by the JSC is perhaps an indication of the firefight that took place behind the scenes in the JSC. He was asked questions clearly aimed at getting him to admit that it would be preferable that his worthy candidature be abandoned in favour of considerations of gender and race. He bravely clashed with those interrogating him and paid the price when, to the surprise of many observers, the candidature of Judge Nigel Willis of Gauteng was preferred to his. By all accounts, the interview of the latter was a walk in the park compared with Plasket’s.

The JSC’s secrecy has the unfortunate side effect of leading to speculation that what is actually going on in the JSC is comparable to the Pol Pot-esque machinations of those who, in other countries and at other times, have pursued an agenda aimed at securing hegemonic control of all levers of power to the detriment of the independence of the judiciary. Our dispensation guarantees the independence of the judiciary, it respects the separation of powers and it acknowledges the need for checks and balances on the exercise of power by the executive and legislative branches of government. Our chapter nine institutions, especially the public protector and auditor-general, exist to “strengthen constitutional democracy in the republic”, but it is our judiciary that has the power to strike down laws and conduct that are inconsistent with the constitution. A high degree of judicial quality, probity and independence is manifestly a bulwark against corruption, the abuse of power and any hegemonic tendencies in the body politic.

How, then, should the JSC go about recommending candidates for the bench? While the constitution and the legislation creating the JSC make no express reference to the word “transformation”, the former is a transformative document, carefully crafted by the founders of the new nation “united in its diversity” to replace the apartheid dispen- sation of the blighted past of SA. The racism and sexism of the past have been banished and, instead, human dignity, the achievement of equality and the advancement of human rights and freedoms, without racialism or sexism, are what the constitution envisages. Unfair discrimination is abolished, but “to promote the achievement of equality”, measures may be taken to protect or advance people or categories of people disadvantaged by unfair discrimination. Plasket must be ruefully pondering these noble sentiments and his entitlement to fair labour practices, which are guaranteed to all in the bill of rights.

The constitution stipulates that only “appropriately qualified” women and men who are “fit and proper” may be appointed as judicial officers. It qualifies these basic requirements with the words: “The need for the judiciary to reflect broadly the racial and gender composition of SA must be consid- ered when judicial officers are appointed.” Some commissioners interpret this to mean that when the judiciary is 5% white men, 5% white women and 45% black men, with 45% black women making up the numbers (let us leave out the odious race classifications that should have died with apartheid but linger on like a bad smell), a nonracial and nonsexist judiciary will be achieved. On this interpretation, the words “broadly” and “must be considered” are given a strangled meaning that leads to an outcome that would make Hendrik Verwoerd and all other social engineers proud.

A more purposive, progressive and functional construction is surely preferable. The selection process does not take place in a vacuum. Candidates must be prepared to come forward. There are many black and female potential candidates who could easily satisfy the criteria who choose not to come forward for interviewing by the JSC. The task of the JSC is to sift available candidates through the sieves of fitness, properness and appropriate qualification. Some fall by the wayside in the sifting process; the survivors will range from “barely made it” to “superstar” on the anticipated merits of their ability to judge. Only then should the consideration of race and gender come into play. Preferring a barely-made-it woman to a superstar man is a dangerous departure from the requirements spelt out in the constitution. The Cape Bar Council has already taken the JSC to court for declining to fill vacancies. It was ruled that it is irrational not to appoint suitable candidates who are available merely because they do not fall into the correct demographic. This could destroy the judiciary and it makes a nonsense of nonracialism and nonsexism. All sensible litigants would prefer that the best judges, irrespective of their race and gender, are available to hear their cases. Anything less presupposes the dumbing down of the bench and surrendering to mediocrity. Our public administration is constitutionally required to have a high standard of professional ethics and to be efficient, effective and economic in its use of resources, including human resources. Nothing less will do for the judiciary.

Parliament has recognised this in legislation designed to promote the education and training of judicial officers. Here are some extracts from the preamble to this legislation worthy of noting by the JSC and everyone else concerned about the quality of the judiciary: “Since the need for education and training of judicial officers, whether aspirant, newly appointed or experienced, has long been recognised and that principle is practised and entrenched in most judicial systems around the world; and since there is a need for the education and training of judicial officers in a quest for enhanced service delivery and the rapid transformation of the judiciary; and since the law has become much more complex and varied, develops rapidly and is increasingly influenced by the globalisation of legal systems, trade, technology, new insights and challenges; and since education and training of judicial officers are necessary to uphold judicial independence, on the one hand, and to facilitate judicial accountability, on the other, and both are indispensable requirements of a judiciary in a functioning democracy; and since it is desirable that the education and training of judicial officers should primarily be directed and controlled by the judiciary …”.

It is perhaps significant that neither race nor gender is mentioned by Parliament. The quest for a nonracial and nonsexist order in SA calls for a transformation of mind-set, not a counting of chromosomes and measuring melanin cells. Perpetuating racism and sexism in the JSC’s processes is not what the law intends.