Quite apart from its disturbing gyrations in the long outstanding complaint by the Justices of the Constitutional Court against Western Cape Judge President John Hlophe, the Judicial Service Commission has once again signally failed to fulfil its primary function.  This occurred in its processes designed to find suitable candidates to fill three vacancies on the Cape Bench. 

These vacancies exist because senior judges have retired.  The JSC is required by the Constitution to find ‘appropriately qualified' persons who are ‘fit and proper' to fill the vacancies.  The Constitution further 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'.

The JSC has apparently failed (although it disputes this) to get the required procedures right, and has been challenged by the Cape Bar Council to do so. This might involve a repeat of the interview and final selection process.

There was no shortage of candidates for the vacancies on the Cape Bench.  Seven of them made it onto the JSC's short list and were afforded a public interview for the purpose of finding the candidates most worthy of gracing the Bench and ensuring its independence, impartiality, dignity, accessibility and effectiveness without which the legitimacy of the judiciary is placed in jeopardy. 

Four of the candidates were pale male silks practising at the Cape Bar.  One was a pale female attorney who has practised for many years in Cape Town, one a pale male attorney of considerable experience and one was a so-called Coloured male regional magistrate who has of late acted as a judge in the Western Cape High Court. 

The Silks at the Cape Bar had all previously acted as judges in the Western Cape High Court. Both of the attorneys and the magistrate are currently serving terms as acting judges.  Accordingly, all of the candidates are of known quality and have had the opportunity of establishing, in practical ways, whether they are fit and proper persons for the high office to which they aspire. 

According to the April law reports, the Cape Bench is at present graced by 29 permanent judges and supplemented by eleven acting judges in order to cope with the not inconsiderable work load of this second busiest Division of the High Court in the country.  Of these permanent judges, 21 are male and 8 are female. 

Accordingly, females are demographically under represented.  The population of the Western Cape, using the outmoded classifications of our apartheid past, is 55% Coloured, 20% Black, 20% White, with other groups including foreigners making up the final 5%.  Six of the permanent judges are Black, seven are Coloured, four are Indian and twelve are White.  Accordingly, the White group is over represented and the Coloured group is under represented.

It must, however, be stressed that the need to take into consideration racial and gender factors is not an absolute requirement of the fundamental types that come into play when ‘appropriate qualification' and the ‘fit and proper' status of candidates are considered in the deliberations of the JSC.

This has long been recognised by the JSC which has hitherto been careful to avoid mechanistic racial bean counting of the kind favoured by the likes of Jimmy Manyi.  At every sitting of the JSC since 1994, White candidates have been appointed to the Bench despite the fact that the so-called White racial group is disproportionally over represented in our judiciary by reason of our lamentable apartheid past.

The JSC has deliberately done this because it has in the past implicitly recognised that the need for demographic representivity is but an element of the legitimacy of the Bench and that the inherent fitness for office of candidates contributes to the legitimacy of the bench just as much as, if not more than, demographic considerations. 

It would have been futile to appoint inappropriately qualified and unfit persons solely as a consequence of the need to take into consideration race and gender.  The fact that there are twelve White judges out of twenty nine on the Western Cape Bench, all of whom were appointed after 1994, is the proof of the pudding. 

It therefore comes as a disturbing surprise that a female and five male candidates for the Cape Bench, who are White, have all been overlooked in favour of keeping vacancies, rather than appointing any two of them. 

This is a worse case scenario than that which occurred in 2010 when all vacancies were filled, but a brilliant White candidate who is internationally recognised as a fine lawyer, was overlooked.  The decision to keep open vacancies rather than appoint the best of these five, does not bode well. 

Can it be expected that worthy White candidates will continue to make themselves available for permanent judicial appointment when these five have been so shabbily treated by the JSC?  Can they be expected to take up acting appointments in the face of this calumny?

It is also questionable whether it is appropriate to treat acting appointments as a ‘test run' for unheralded candidates who have ambitions to be appointed permanently.  This is likely to dilute the quality of justice dispensed and to give the Judge President, who in effect selects the acting judges with the imprimatur of the Minister of Justice, the power to dispense favours which his office does not properly encompass. 

Indeed, throughout the country, and particularly in the bigger Divisions, the institution of acting judges is being abused by the manner in which and duration for which, acting judges are appointed to do the heavy work required of judges. 

Competent and experienced White acting judges are routinely appointed, sometimes for extended periods of time, in order to cope with the work load.  Despite the fact that they have the qualifications and are fit and proper persons for appointment, they are, however overlooked when it comes to permanent appointments. 

On the other hand, so-called ‘transformation candidates' are allowed to lurk with intent on the Bench as acting judges until their repeated attempts to achieve permanent status are so regularly rebuffed that they eventually give up their acting positions. This practice cannot contribute positively to the confidence of the public in the judiciary's ability to administer justice properly. 

It is also worth noting that the female attorney who was among the candidates rejected had attended the judicial training course and had scored the highest marks on the course.  What more is she supposed to do? 

Furthermore, Owen Rogers SC is a candidate in the same class as last year's reject, Jeremy Gauntlett S C, which makes the decision to overlook him incomprehensibly irrational, particularly in view of the fact that his candidacy was supported by Advocates For Transformation in glowing terms. 

The provisions of the Promotion of Administrative Justice Act make it clear that its machinery cannot be utilised for the purpose of taking decisions to appoint or not to appoint judges, on review.  The fact remains, however, that unless the JSC takes a long, hard look at its trajectory and endeavours to seek a proper constitutionally compliant balance in the manner in which it goes about its work, the common weal will not be served by the appointment of inferior judges in the interests of race and gender considerations. 

Paul Hoffman SC is Director of the Institute for Accountability, Madeleine de Swardt SC is a Former Member of the Cape Bar

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