White male debate eclipses that on women judges
ONE of the many ironies about last week’s round of Judicial Service Commission (JSC) interviews is that, proportionally at least, the white men did far better than the women in terms of how many of them were appointed.
The interviews, for the Supreme Court of Appeal and several high courts, were expected to be all about the women candidates; for the first time, there were more women candidates shortlisted than men in the face of continuing concern inside and outside the commission about gender imbalance in the judiciary.
Instead, they ended up being all about the white men because the whole week’s interviews happened in the shadow of a controversial discussion document, drafted by commissioner Izak Smuts SC, on transformation of the judiciary.
“Transformation” has become the short-hand term for the injunction in section 174(2) of the constitution — that when it is making judicial appointments, the JSC must consider the need for the judiciary to broadly reflect SA’s population in terms of race and gender. This time, the furore has seen the resignation of Mr Smuts from the JSC. And it may not end there: nongovernmental organi- sation Freedom Under Law said at the weekend that its board would consider legal action if no one else did anything.
In his discussion document, Mr Smuts called for an “honest debate” about the JSC’s approach to white men, saying if the JSC would appoint white men only in exceptional circumstances, the JSC should say so. But of the five white men interviewed in this round, three were appointed or promoted: Competition Appeal Court Judge President Dennis Davis was reappointed to the position; South Gauteng High Court Judge Nigel Willis got the nod for the Supreme Court of Appeal; and Gregory Wright SC was recommended for the North and South Gauteng High Court.
That is a 60% success rate for the white men. The women got only 36% with 14 short-listed, but only five appointed or promoted: South Gauteng High Court Judge Halima Saldulker is going to the Supreme Court of Appeal; attorneys Wendy Hughes, Nomsa Khumalo, Daisy Molefe and magistrate Leonie Windell are going to the North and South Gauteng High Court.
Nonetheless, Mr Smuts went out guns blazing, saying that during his time the commission had “left a trail of wasted forensic talent in its wake”. He named Supreme Court of Appeal Judge Azhar Cachalia and advocates Geoff Budlender SC, Willem van der Linder SC, Torquil Paterson SC and Jeremy Gauntlett SC as examples of “intellectual forensic excellence, steeped in the values of the constitution”, who had been overlooked.
In a media statement on Friday night, Freedom Under Law’s chairman and former Constitutional Court judge, Johann Kriegler, said “if nobody else takes action, Freedom Under Law will have to consider whether it is once more to institute appropriate proceedings to have the propriety and legitimacy of the JSC’s current course of conduct tested”.