NEWS & ANALYSIS

Why I'm resigning from the JSC - Izak Smuts

Advocate says his understanding of constitutional values is far removed from majority of his fellow commissioners

I am committed to the foundational values of the South African constitution, including those of human dignity, the achievement of equality and the advancement of human rights and freedoms, the values of non-racialism and non-sexism, and the supremacy of the constitution and the rule of law. I am equally committed to the establishment and maintenance of an independent, impartial and excellent judiciary, which I understand to be a crucial vehicle for safeguarding those constitutional values, and the rights entrenched in the bill of rights.

It has been my honour and privilege to serve since September 2009 as one of the representatives of my profession on the Judicial Service Commission, where I have attempted to live out my commitment to the constitutional values, the judiciary and the bill of rights.

It has not been an easy road. It is inevitable that there would be differences of opinion and approach amongst such a disparate group of persons representing such diverse elements of our society. But the commission is a creature of the constitution, and the values and prescripts contained in the constitution and the law should serve to keep the commission and its activities within defined parameters.

Regrettably, the track record of the commission during the time in which I have served on it has been disturbing. The commission has repeatedly been involved in litigation regarding the manner in which the majority on the commission has directed its affairs. None of that litigation has ultimately met with success. The image of the commission has been tarnished in consequence.

Furthermore, during my time on the commission, it has left a trail of wasted forensic talent in its wake which would be remarkable in a society rich in human resources, and is unintelligible in a society such as ours in which, for reasons of our discriminatory history, such resources are scarce.

Intending no insult to many whom I leave out of this list, which would otherwise be far too long, I raise only the names Cachalia, Budlender, van der Linde, Paterson, Gauntlett and most recently Plasket, as examples of intellectual forensic excellence, steeped in the values of the constitution, all of whom have, during my term of office on the commission, been rejected by the commission for judicial promotion or appointment.

I raise these names to illustrate that there is something deeply concerning about the commission's approach to the intellectual leadership of our legal community. That approach has resulted in a massive loss to our courts of the opportunity to utilise optimally the finest available intellectual prowess. In a country still seeking to establish a new value-based foundation for its continued existence, this waste of talent, experience and values is not rationally explicable.

I have, during my term on the commission, on numerous occasions been in despair at the outcome of its deliberations, and have sought advice from colleagues and former colleagues who had gone on to higher office. I am grateful for their support and guidance. They have repeatedly encouraged me to stay the course and speak truth to power. I have tried to do so up to this point.

While the commission remains in existence, it is a very important body in our constitutional dispensation (the issue of the desirability of the continued existence of a largely unaccountable judicial appointment authority is a matter for debate elsewhere). For as long as we are still permitted to have an independent advocates' profession in this country, it is important that the non-aligned majority in that profession has a voice on the commission.

It has become increasingly apparent to me, and has been made devastatingly clear during the proceedings of the commission this past week, that my understanding of the constitutional values, the constitutional role and duty of the commission, and even of basic rights such as those of human dignity and freedom of speech, is so far removed from the understanding of the majority of the commission that it is not possible for me to play an effective role on the commission. The time has come for someone else to try and succeed where I have spectacularly failed.

Under the circumstances, this marks the end of my association with the commission. I urge my non-aligned colleagues in the advocates' profession to identify and nominate a more persuasive colleague than I am to represent the profession in the commission - there are many such talented people, inter alia a number who have been passed over for judicial appointment.

I am grateful for the opportunity to have been able to represent my profession, and apologise to my colleagues for my inability to have achieved much while doing so. I am also grateful to those of my colleagues on the commission who attempted with me to achieve the best for our country, and particularly for those who litigate in our courts, and those who will be bound by decisions handed down by our courts. I wish those colleagues well. I record also my thanks to the support staff of the commission, who have always been convivial, helpful and willing to serve. They are exemplary public servants.

Statement issued by Izak Smuts SC, Cape Town, April 12 2013

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