South Africa's ruling elite are a nasty bunch. Chief amongst them is the Judicial Services Commission. Steeped in the language of transformation, non-racialism, justice, and democracy, its members negate the very essence of these values.

Their services are neither judicial nor just. They are the embodiment of racism and revenge if the disqualification of Advocate Jeremy Gauntlett is anything to go by. Rejected yet again for what he is best qualified to do, it should come as no surprise if he leaves this country and plies his impeccable credentials elsewhere.

To quote one of our leading judicial minds: "Gauntlett is the kind of adornment the bench could do with anywhere in the English-speaking world." 

"Abrasive", "acerbic", "arrogant" are labels flung at a man who has proven to be one of SA's most astute legal minds. He also served for 14 years as a judge of appeal in Lesotho, and has much experience as an acting judge and arbitrator.

People who show character, who have a personality, and who are provocative are shunned for the bland, the boring and the uninspiring. At the close of sessions of the Court of Appeal of Lesotho in 2009, the President of the Court, Justice Ramodibedi, quoting Justice Steyn, his predecessor, said:

"Jeremy is just simply unique. His razor sharp intellect was unsurpassed by any Judicial Officer I sat with or appeared before over the last nearly 60 years. He would discern the true nature of the issues to be decided despite the best efforts of counsel to obscure these. Whilst he held firm views, he would be willing to yield to wiser counsel and although he did not tolerate unsubstantiated and speculative submission, he gave counsel every opportunity to put his case fairly before the Court. But beware if you were unnecessarily prolix in your submissions or sought repetition to give substance to the unarguable. His judgements will stand as beacons of excellence."

The repeated refusal to select him points to something deeply rotten in an organisation that should epitomise rectitude.  Led by the most toxic trifecta in the judicial world (Judge President Hlophe, Advocate Ntsebeza and Minister Radebe), and supported by the discredited cheerleader Paul Ngobeni, with his dubious track record, the JSC shuns excellence at their peril and consciously eschews appointing candidates who have the ability to perform their duty as required by the Constitution. Instead they deliberately choose candidates who are grossly underqualified as long as they are connected and pliable.

Those chosen over Gauntlett included a Mpumalunga attorney who admitted not disclosing to the JSC disciplinary infractions, only having himself argued unopposed cases and delays as an acting judge in writing judgments. So too a state attorney who opened her own law firm a year ago - only to close it a month later (after owning it) to take up an acting appointment. Optimism, uncanny foresight or simply a nod?

The negative effects of their decisions will plague SA for generations to come. This disrespect for excellence is happening everywhere - at our universities, schools, government departments, state enterprises, all in the name of transformation.

The JSC seems to forget that an independent judiciary is critical to the success of a nation. Instead it exploits its immunity from professional critique; it exploits the fact that potential candidates cannot complain because it will be held against them forever; it enjoys creating factions within the legal community to ensure that it can govern through its divide and rule policy; it enjoys playing God by denying people achieving their highest potential, when in fact it is the devil incarnate; and it enjoys taking revenge against white advocates who are independent and who dare to deliver judgements that go against the ruling party.

So from the highest echelons of power to the lowest, intellectual midgets are governing us. The Chief Justice got into power this way; ditto President Zuma; in fact, most members of the JSC are not qualified to be there; the result is a criminal justice system that is highly dysfunctional.  All because those whose task it is to vet judicial appointments have themselves been vetted improperly.

This article first appeared in Die Burger.

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