Constitutionally compliant transformation of the Judiciary (cont.)
Proper judges do not grow on trees, nor can they be conjured up out of thin air by way of political meddling. In any functioning constitutional democracy proper judges are as necessary as oxygen. They ensure that the separation of powers is preserved and that the checks and balances in the system, installed both to mediate the might of the executive and to test the constitutionality of laws passed by the legislature, are properly in place to protect ordinary citizens' rights.
In South Africa, we now have a system in which the Constitution is the supreme law. Ours is a non-racist, non-sexist democracy under the rule of law. Our judges are the final arbiters of what is allowed and not allowed under the Constitution; they are subject only to the law and the Constitution. Their impartiality and independence are guaranteed. They can not easily be removed from office and their salaries can not be reduced. These constitutional truths create a structure that empowers judges to act without fear, favour or prejudice. No-one, including organs of state, is allowed to interfere with the functioning of the courts and their orders and decisions are binding on all to whom they apply. The judicial authority of the Republic is vested in the courts. The importance of an independent judiciary to prosperity, peace and progress in the land can not be over-emphasized. Business confidence, investor friendliness and international acceptability all depend on an independent and functional judiciary. [When Zimbabwe embarked upon its ruinous course one of the first institutions to collapse was its judiciary. Today there is not even paper available on which to type judgments in the courts that remain.]
The selection of suitable candidates for judicial office is accordingly a delicate task which is entrusted to the Judicial Service Commission (JSC) by our Constitution. The members of the JSC usually meet twice a year to fill vacancies in the judiciary. Applications are sifted carefully and short-listed candidates are interviewed in public before the JSC privately deliberates on the merits and demerits of each candidate. Senior judges, representatives of the professions, academia and political parties as well as four nominees of the President serve on the 22/24 member commission. It is on their considered advice that the President appoints most judges, special provisions exist for the appointment of senior judges.
The criteria for appointment are clear: appropriately qualified, fit and proper persons who are South African citizens (for the Constitutional Court) are eligible. Identifying the right candidates from those who apply for vacancies as they occur is the main function of the JSC.
Recognizing that the legitimacy of the Bench is best served by a diverse judiciary, the Constitution also stipulates that "the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed." In the past this consideration has been allowed to overshadow the basic requirements of appropriate qualification, fitness and properness. Candidates have been elevated on the basis of their "potential" rather than a long track record in the practice of law, whether as attorney, advocate or academic; magistrate, prosecutor or even, somewhat unusually, civil servant.
Traditionally, the ranks of senior counsel have been regarded as the appropriate source of proper judges; the need to diversify has seen a departure from this custom as pale males, who are in plentiful supply on the Bench, still dominate the senior echelons of the Bar.
When the JSC met in October 2007, one of the candidates for appointment as a judge of appeal, Judge Cachalia, who now graces the Supreme Court of Appeal bench, warned the JSC that its affirmative action chickens were coming home to roost. By this he meant that too many inadequately qualified and insufficiently experienced judges had been appointed in the interests of transforming the demographics of the judiciary, at the expense of quality in the work done by some appointees. This tends to undermine the legitimacy of the judiciary. The notion of appointing on the basis of "potential" was quietly abandoned. Instead, a training system for candidate judges and a special course for women identified as possible judges came into being. Women are grossly under-represented on the Bench. There are only 42 out of a total of 205, with 112 black judges.
The regular meeting of the JSC in June 2009 was postponed, after a majority vote, at the request of the new Minister of Justice, who with eight parliamentarians, were all newly appointed and may not have had sufficient time to acquaint themselves with the task at hand. The postponement has drawn criticism from certain quarters where suspicion of the transformation agenda of the ANC dwells.
The ANC’s transformation of the judiciary project is focused on a perceived need to make the judiciary "responsive to the aspirations of the people" in the words of its Polokwane resolution. This ought not to be confused with the constitutional considerations concerning the demography of the judiciary. What is required is a particular mindset: one that is attuned to the ANC’s version of the people’s aspirations. This is incompatible with the constitutional idea that the judiciary be impartial and independent and subject only to the law and the Constitution itself. All judges have to uphold the Constitution. There are suspicions in opposition quarters that this political form of "transformation" is no more than a pretext for cadre deployment in the judiciary in pursuit of the ANC’s declared desire to have safe party hands on "all of the levers of power" in society. Needless to say, the deployment of party hacks on the Bench would severely dent the capacity of a supposedly independent judiciary to impartially deal with the disputes between citizen and state which are the daily work of the courts.
It is almost as though the issue has not been thought through properly: the ANC seemingly projects its own failures to respond appropriately to the aspirations of the people on to the judiciary and seeks to blame/change/shame it for the shortcomings that are evidenced by the experience of various litigants like the Treatment Action Campaign (inadequate healthcare), rail commuters (unsafe trains), Mrs. Grootboom (no housing), Ms. Carmichele (negligent granting of bail to a violent sex-pest), Mr. Nyati (non payment of a judgment against the state), Mr. Khosa (no social grants for permanent residents), Mr. Von Abo (no diplomatic protection) – the list is endless. If the laws themselves were more "responsive to the aspirations of the people" the judges would apply them in disputes taken to court and that would be that. Judges do not make the law, this is the task of the other spheres of government.
When the JSC reconvenes in July and again later in the year to consider the candidates for the vacancies in the Constitutional Court, it is to be hoped that the constitutional requirements will trump the agendas of those involved in the world of politics and that the need of the people, all of them, to have judges they can trust to act impartially and independently in all they do will triumph in the selection of candidates for judicial appointment. Our new President is going to find himself in a conflict of interest situation if called upon to appoint new Constitutional Court judges before the review of the decision to withdraw criminal charges against him is finally determined. The review should be fast tracked to obviate this.
Paul Hoffman SC
June 2009