The decision by the Judicial Service Commission on the successful candidate for appointment to the Western Cape High Court and its decision not to fill the other two vacancies on that court

The Cape Bar Council congratulates Mr Robert Henney on his appointment as a Judge of the Western Cape High Court and wishes him well in his important new office.

The Cape Bar Council is however deeply dismayed that the Judicial Service Commission ("JSC") filled only one of the three vacancies on the Western Cape High Court, for which it interviewed seven shortlisted candidates on 12 April 2011.

Mr Henney was the only black candidate. The remaining six candidates were white. One of them was a woman. All six have served as acting judges in the Western Cape High Court on numerous occasions. Among the shortlisted candidates were three very capable, experienced, senior practising advocates and members of the Cape Bar, Adv Michael Fitzgerald SC, Adv Sven Olivier SC and Adv Owen Rogers SC. The Cape Bar had supported their appointment in its submissions to the JSC.

The Cape Bar Council, which is composed of 50% white and 50% black members, acknowledges that all of them are white men, that there is a constitutional requirement that the judiciary be transformed to reflect broadly the racial and gender composition of our country, and that the goal of a transformed judiciary has not yet been fully met.

However, as the Cape Bar Council pointed out in its submission to the JSC on the candidates for judicial appointment, in the past few years the Western Cape High Court has lost to retirement the majority of its very experienced members.

The general sense at the Bar is that, at this juncture, the bench as a whole, as well as practitioners and litigants, will benefit greatly from the appointment of able, experienced, senior practitioners. It is against this background that the Cape Bar Council supported the appointment of one or more of Advs Fitzgerald, Olivier and Rogers.

The Cape Bar Council said in its submission that in doing so it was conscious of the fact that it was supporting three white male candidates for appointment to the Western Cape High Court. The Cape Bar is committed to the transformation of the legal profession, which obviously includes the bench. For this reason Cape Bar Council's decision to support these candidates was a carefully considered one.

Cape Bar Council also acknowledged in its submission to the JSC that on a consideration of the seven applications, the JSC might prefer not to fill all three vacancies at this stage. In such an event, however, it urged the JSC to appoint Adv Rogers, who is an exceptional candidate, and to consider appointing at least one of Advs Fitzgerald and Olivier.

The Cape Bar Council's reasons for saying Adv Rogers was an exceptional candidate are apparent from its comment on his application, which included the following:

"There is overwhelming support from members for Adv. Rogers SC'S appointment. The widely held view is that he is one of the finest lawyers ever to have practised as a member of the Cape Bar. One of the striking features of his practice is his consistent diligence and professionalism. He has handled some of the biggest and most difficult commercial cases in recent South African history, yet he brings the same level of dedication to all his work even where relatively little is at stake.

He can justly be regarded as one of the foremost experts in competition law, tax law, corporate law, labour law, pension law and administrative law and he has significant experience in environmental law, banking law and general commercial law.

He is also scrupulously honest and ethical, with an innate sense of fairness. He is not only dignified, but recognises that all are entitled to their dignity. This is evident in his behaviour towards his fellow counsel, attorneys, clients, witnesses and the bench.

The depth and breadth of his legal knowledge is exceptional. He has a remarkable ability to work quickly and efficiently, however intricate the factual and legal problems presented by a case...

The Cape Bar Council unhesitatingly supports Adv Rogers SC's appointment and regards him as the pre-eminent candidate for appointment to the High Court bench."

In its submissions to the JSC the Cape Bar Council also pointed out that during his two consecutive terms as Chairperson of the Cape Bar Council, Adv Rogers had introduced a number of transformation initiatives, which are still in place today. One of these is a system aimed at encouraging silks to work with PDI juniors (women and black persons who have been at the bar 5 years or less).

The comment of the Cape Bar Council was followed by a separate comment by the Executive Committee of Advocates for Transformation (Western Cape) ("AFT"), by means of which AFT took the unprecedented step of supporting the appointment to the Western Cape High Court of Adv Rogers SC, a white male candidate. It did so in the following terms:

"Advocates for Transformation Western Cape support the nomination of Adv. 0 Rogers SC to the bench. Our members report that Mr Rogers has been involved in the transfer of skills to junior members of the Bar by not only involving them as juniors in his matters but also by always being available as a resource whenever needed. His chamber door is always open to all juniors seeking help of one kind or the other.

One of his more admirable qualities, apart from his deep knowledge of the law, is his humility and patience when dealing with his juniors. We are convinced that Mr Rogers will make a good judge."

In these circumstances, the inference is inescapable that the JSC chose not to recommend any of the other six candidates solely on the grounds of their race.

In the course of last week the Bar Council learned that during the interviews, deliberations and decisions of the JSC on Tuesday, 12 April 2011 on the candidates for appointment to the vacancies in the Western Cape High Court, neither the President of the Supreme Court of Appeal ("SCA"), nor the Deputy President of the SCA, were present. Sections 178(1)(b) and (7) of the Constitution of the Republic of South Africa, 1996 ("the Constitution"), provide that one of the members of the JSC is the President of the SCA and if the President of the SCA is temporarily unable to serve on the JSC, the Deputy President of the SCA acts as his or her alternative on the JSC. In Judicial Service Commission v Premier, Western Cape (537/10) [2011] ZASCA 53 (31 March 2011), it was recently held by the SCA that the 13 persons mentioned in section 178(1)(a) to (g) and (j) of the Constitution always comprise the JSC. On the face of the Constitution, the President of the SCA must always be there or his or her deputy must both be invited to attend and must be present.

Accordingly, the Cape Bar Council, on Friday, 15 April 2011, drew these facts to the attention of the Chief Justice S Ngcobo, in his capacity as Chair of the JSC and expressed the view that on the face of it the proceedings of the JSC on Tuesday, 12 April 2011, in relation to its interviews of and decision in relation to candidates for appointment to the Western Cape High Court were invalid and that the JSC could accordingly not, on the basis of those proceedings, validly furnish the President of the Republic of South Africa with the advice contemplated by section 174(6) of the Constitution on the appointment of anyone to the Western Cape High Court.

The Chief Justice was requested in the circumstances to reconvene the JSC in terms of section 178(6) of the Constitution in order that the candidates for appointment to the Western Cape High Court might be re-interviewed, followed by fresh deliberations and decisions on the filling of the three vacancies, and requested him to delay notifying the President of the Republic of South Africa of the JSC's recommendations in relation to the Western Cape High Court vacancies until this had occurred.

On Monday, 18 April 2011, the Cape Bar Council was advised by the JSC Secretariat that the JSC had considered the matter and, by majority, disagreed with the foregoing proposition and had accordingly requested the Chief Justice to proceed to advise the President of the Republic of South Africa on the recommendations envisaged in section 174(6) of the Constitution.

The Cape Bar considers that the interests of the judiciary, the legal profession, the litigating public and the broader community have not been served by the rejection by the JSC of candidates for appointment to the Western Cape High Court of the calibre of Advocates Fitzgerald, Olivier and Rogers, or by the JSC's later decision not to reconvene and reconsider its decision in relation to the appointments to the three vacancies at the Cape High Court bench.

Statement issued by Alasdair Sholto-Douglas SC, Chairperson Cape Bar Council, April 20 2011

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