The Curious Case of Gauntlett SC
The rumour mill that churns furiously whenever the Judicial Service Commission has a sitting to consider recommending candidates for the Bench has been revolving overtime, regarding the choice of candidates for the Cape Bench, who were interviewed in April 2010.The system works this way: vacant posts for judges are advertised, those willing to do so apply, a sifting committee of the JSC weeds out applicants not worthy of an interview and those who make the short list are interviewed in public. Thereafter the JSC deliberates on the choices it must make and the names of the successful applicants for vacancies are then recommended to the President who virtually invariably appoints those so recommended.
The rules of engagement are deceptively simple: the task at hand is to identify the appropriately qualified women and men who apply who are fit and proper persons to be appointed as judges of the High Court. Those who make it past the sifting committee are usually compliant with these criteria. But then comes the tricky part, in accordance with section 174(2) of the Constitution:
"The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed."
This is not a quota system for those who are not pale and male (the demographic that dominated the Bench under apartheid and is still over-represented) it is simply a factor which must be considered. And consider it the members of the JSC do. Its new spokesperson, Dumisa Ntzebeza, seems to understand the distinction between considering demographics of race and gender on the Bench and slavishly applying race and gender criteria as if parity of men and women and racial "representivity" have to be achieved overnight. The unpalatable truth is that just as it is impossible to make bricks without straw, it is impossible to appoint black women candidates if there are no black women who are prepared to apply and are appropriately qualified, fit and proper persons.
The universities and legal professions can perhaps be blamed for the scarcity of suitable black and female candidates, but the law is a tough profession and nobody can compel women or anyone to pursue a career in so arduous a field simply because the constitution requires that broad racial and gender composition of South Africa must be considered. The freedom to choose one's profession is guaranteed in the Bill of Rights. Suitable training courses for women lawyers with the potential to grace the Bench have been devised, but the truth is that there is no substitute for experience, and experience in the practice of law is not gained overnight or at a training course.
The governing alliance has a policy for the transformation of the judiciary which it is urgently implementing. This policy requires the appointment of judges who are responsive to the "aspirations" of the people and appreciatively supportive of the forms of transformation of society which are the policies of the government of the day. These policies are informed by the tenets of the national democratic revolution. One of the goals of this revolution is to have safe party hands on all the levers of power in a society in which hegemonic control is attained by the protagonists of the revolution. The so called "white nation" (whatever that may be) is seen as the antagonist of this revolution.
Ngoako Ramatlhodi MP, JSC member and former premier of Limpopo, has recently described the progress of the national democratic revolution espoused by the governing alliance in 2010, some fifteen years after taking charge:
"…[T]he white nation…have surrendered political management of the country to black people whilst holding on to all other levers of power…look at the ownership of land, the ownership of factories and the banks, the schools and universities that produce the best results…[T]he strategic objectives of the NDR are far from being achieved."
In a political atmosphere that is charged with aspirations of this kind, and having regard to the fact that there is a preponderance of politicians on the JSC and a well whipped ANC caucus too, it is plain that the process of recommending the right candidates is bound to be fraught with difficulty.
This time around there is a situation comprising three vacancies and four Cape Town candidates. One of them has to be eliminated. The two women have an inside track in the race as they are in short supply on the Cape Bench and section 174(2) favours their appointment. But a delicate balancing act as between the available candidates must surely be carried out in weighing their relative worth; appointing a very weak woman in preference to a very strong man is not the way to promote an independent dignified and effective judiciary. Yet the constitution requires all organs of state, of which the JSC is one, to "assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts."
By some strange alchemy, which it is not required or obliged to explain, the JSC has apparently decided to overlook Jeremy Gauntlett SC, an Oxford educated leading silk, former Chairman of the Cape Bar and of the General Council of the Bar, sometime Judge of Appeal in Lesotho and author of legal texts of authoritative nature. Comparisons are invidious and it is not appropriate to make them in this context. Suffice it to say that demographics, race and gender had nothing to do with the decision. Neither did merit. Unusually, an assortment of distinguished retired judges, current judges of appeal and the chief justice of Swaziland have let it be known that they regard Gauntlett worthy of elevation to the Bench. His suitability to serve is beyond question; he has twice unsuccessfully applied, somewhat ambitiously, for vacancies in the Constitutional Court and has served with distinction as an acting judge over the years in addition to his distinguished service in Lesotho. Coming hard on the heels of the thrice repeated refusal to appoint Geoff Budlender SC to the Cape Bench, the curious treatment of Gauntlett perpetuates a pattern in which numerous other pale male silks find themselves inexplicably sidelined from serving their country as judicial officers after long and distinguished careers at the Bar.
The law of unintended consequences may kick in if the JSC persists in this type of decision making; the chilling effect of being repeatedly overlooked may dissuade the worthiest of pale male candidates from applying at all. The Bench and the country will be the poorer for this. Especially in circumstances in which there are no suitable women or black candidates. Worthy black potential candidates already use the excuse that they do not want to join the Bench for fear of being seen as second raters. As Judge Louis Harms put it at a symposium in Bucharest a few years back:
"Prominent members of the bar are not prepared to accept nomination for fear of an unreasoned rejection in favour of a poor candidate… Transparency and accountability are matters of degree, judicial independence is not."
Perhaps the time has come to depoliticize the JSC and to rely on the wisdom of retired members of the judiciary in its deliberations. Unlike politicians, the judges really do know who the worthy candidates are. As Deputy President Motlanthe has suggested, the JSC should also be given a role to play in the selection of the National Director of Public Prosecutions.
Paul Hoffman SC
April 2010
