TRANSFORMATION AND THE JUDICIAL SERVICE COMMISSION -
Discussion paper for the JSC April 2013
At the October 2012 meeting of the Judicial Service Commission ("JSC"), it was suggested that I might provide some guidance for the JSC on the issue of transformation. This is it.
The JSC is a creature of the Constitution, established in terms of the provisions of section 178. Its powers and functions are primarily defined in the Constitution, although provision is made for the allocation of powers and functions to the JSC by way of national legislation. Those powers and functions are currently contained in the Judicial Service Commission Act, No 9 of 1994. It is also legitimate to examine the jurisprudence that has emerged in our courts interpreting the Constitution to determine the appropriate approach of the JSC. In this regard, the First Certification judgment can be instructive.
My primary observation may be somewhat startling to those who espouse the view that the JSC is required to play a role in the promotion of transformation. The fact is that the word "transformation" appears in no statutory provision relating to the JSC - not in the Constitution, nor in the Judicial Service Commission Act.
To attribute to the JSC a duty to promote "transformation", accordingly, immediately introduces a subjective element into the interpretation of the role of the JSC - "transformation" means whatever the particular user of the term intends it to mean. While one woman's interpretation of the term may mean no more than a rote and systematic replacement of white male judges with black and women judges, another may relate the term exclusively to the appointment of individuals, irrespective of race or gender, who embrace and promote the values entrenched in the Constitution. Both approaches would undoubtedly result in the transformation of the judiciary, but the two may have very different consequences.
I suggest that she who attributes to the JSC an obligation to promote an undefined "transformation" of the judiciary, promotes a constitutionally unfounded and practically extremely dangerous approach to the role of an extremely important institution in our constitutional dispensation.
THE TRUE CONSTITUTIONAL PRESCRIPTS
Section 174 of the Constitution embodies the considerations governing the JSC directly when considering appointments to the judiciary.
The relevant provisions are these:
"(1) Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.
(2) 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 addition, the JSC is clearly bound to operate within, and in pursuit of, the constitutional values reflected in section 1 of the Constitution, which provide as follows:
"The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government to ensure accountability, responsiveness and openness."
The JSC is further, as expressly provided in section 8(1) of the Constitution, bound by the Bill of Rights, which entrenches inter alia equality before the law, human dignity, and just administrative action.
There is enough challenge for the JSC in seeking to abide by the provisions of the Constitution which are applicable to its operations without seeking to impose upon the JSC an obligation to promote an undefined notion of transformation.
THE INITIAL CHALLENGES FACED BY THE JSC
The advent of democracy in South Africa occurred at a time when the judiciary was, with isolated exceptions, white and male. This was clearly an untenable situation in a society which set for itself the goal to establish a non-racial, non-sexist foundation for itself.
It also posed a fundamental challenge to the reconstruction of the judiciary. Three hundred and forty two years of white domination had witnessed the calculated under-education of the black population, and the limitation by design of opportunities for black and female South Africans to obtain meaningful experience in a host of spheres. The legal domain was no exception. Notwithstanding that fact, and against great odds, numerous excellent legal practitioners from historically disadvantaged groups had emerged in the practice of law.
The new order provided opportunities for such practitioners for the first time to enjoy the unrestrained opportunity to prove their excellence, and to benefit from the fruits of their labour. Understandably, many of these excellent practitioners were reluctant to forego that opportunity so long denied them for the sake of taking up positions in the judiciary.
Without criticising this latter category of practitioners, accolades are due to those who did forego such opportunities to serve the new dispensation by joining the judiciary. It is nevertheless so that it is not always the most skilled and experienced candidates who have made themselves available for judicial appointment.
The "transformation" issue in the sense that it relates to the racial and gender composition of the judiciary remains contentious. While considerable strides have been taken in the increase of the numbers of black judges, the number of women judges appointed to the bench remains pitifully small. Not enough skilled, experienced and competent women candidates have made themselves available for appointment. In addition, the challenges to women legal practitioners to establish, build and sustain successful practices are profound, and are not unique to this country.
We are properly cautioned by the Democratic Governance and Rights Unit's submission to the April sitting of the JSC against "quick fix" solutions in this regard - judicial appointments are intended, and for very good reason, to ensure security of tenure for appointees, and the appointment of HDI candidates who may (inter alia for reasons of cultural, religious, ethnic or political background) have issues with certain of the values of the Constitution, simply to ensure racial and gender quota representation, would be an extremely dangerous approach because judges, once appointed, are very difficult to remove.
THE ELEPHANT IN THE ROOM
There exists a very real perception in certain quarters that the JSC is, in general, set against the appointment of white male candidates except in exceptional circumstances. The interviews of April 2011, when four white male senior counsel were available for appointment, but the JSC left two positions vacant, have done little to dispel this perception (although one of those candidates has subsequently been appointed to the Western Cape bench). The approach of the JSC on that occasion was held by the Supreme Court of Appeal to be irrational and unlawful.
If there were reasons other than the race and gender of those available, fit, proper and suitably qualified candidates for failing to fill the vacancies, they have not been publically articulated. In the First Certification Judgment, the Constitutional Court held as follows:
"If there is a vacancy in a Court the JSC is under a duty to fill it. It may no doubt delay or defer an appointment until a suitable candidate is identified, but it should not be assumed that it will abdicate its responsibility by allowing permanent vacancies to be filled indefinitely by acting judges."
The JSC ought to have an honest debate about its approach to the appointment of white male candidates. If the majority view is that, for the foreseeable future, white male candidates are only to be considered for appointment in exceptional circumstances (an approach I consider to be unlawful and unconstitutional), the JSC should at the very least come clean and say so, so that white male candidates are not put through the charade of an interview before being rejected.
The JSC may well find itself at the receiving end of judicial criticism for making public such an approach, but it would at least be out in the open. One way or the other, the JSC must deal with the uncomfortable perception that the graffiti on its wall reads "white men can't judge".
THE PROPER APPROACH FOR THE JSC
The JSC is required to establish that a candidate for judicial appointment is appropriately qualified and a fit and proper person before considering such person for appointment. That is a constitutional imperative (section 174(1)).
The JSC is not required, notwithstanding frequent suggestions that this too constitutes a constitutional imperative, to promote the appointment of black and women candidates as a matter of course - the express provision of the constitution (section 174(2)) requires 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" (my emphasis). While one may have thought such consideration obvious, it is a timely reminder that it was expressly included in the Constitution.
However, the JSC would fail in its duty if it did not simultaneously consider other vital issues - the existing experience of judicial officers on the particular bench under consideration, the needs in terms of special expertise of that bench, the mean age of judges on that bench and the likelihood of retirement of experienced judges in the near future, and so on. It needs further to weigh the need contemplated in section 174(2) against the constitutional rights to equality before the law, human dignity and just administrative action.
If diversity on the bench is the true concern that is sought to be addressed under the heading "transformation" (and it is to be remembered that section 1 of the Constitution records non-racialism and non-sexism as foundational values of our state), section 178(5) of the Constitution expressly empowers the JSC to advise the national government on any matter relating to the judiciary or the administration of justice. An intensified focus on diversity development by the JSC could empower it to give such advice to the national government. That is a path the JSC should be urged to follow with greater zeal.
Ideas that spring to mind immediately are the restructuring of briefing patterns in the office of the biggest litigation institution in the country, the office of the State Attorney, which may effect genuine empowerment through an even spread of work amongst competent and promising HDI advocates and correspondent attorneys, rather than crony briefing patterns amongst a limited number of practitioners, and engagement by the JSC and the Department of Justice and Constitutional Development with the law societies to bring about a similar development of briefing patterns in the private sector.
Further, structured patterns of accommodation of the particular needs of women practitioners, including sustaining and reintegrating into the legal professions those whose motherhood obligations require their temporary absence from practice, should be devised and promoted within the professions. Once there is greater experience in the legal sector, diversity will be far easier to achieve.
What the JSC ought to guard against most strenuously is the pursuit of a covert political agenda under the guise of an alleged constitutional imperative.
IZAK SMUTS SC
Equity House Chambers,
5 April 2013
 In re Certification of the Constitution of the RSA, 1996 - 1996 (4) SA 744 (CC)
 Judicial Service Commission v Cape Bar Council 2013 (1) SA 17 (SCA)
 In re Certification of the Constitution of the RSA, 1996 supra at paragraph .
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