APPOINTMENT OF JUDGES NOT A BLACK AND WHITE ISSUE
Adv Johan Kruger, Director: Centre for Constitutional Rights
The Centre for Constitutional Rights (CFCR) has taken note of recent statements by the Chief Justice regarding the mandate and duty of the Judicial Services Commission (JSC) and the need for “transformation” to supersede the principle of merit – encapsulated in section 174(1) of the Constitution – when appointing judges.
The Constitution, both in letter and spirit, seeks to ensure a society based on democratic values, social justice and fundamental human rights. It seeks to ensure the achievement of equality, a society based on non-racialism and non-sexism and the supremacy of the Constitution and the rule of law. In terms of the Constitution, it is the duty of our courts to see to it that the Constitution, including all the values, principles and rights enshrined therein, are upheld. As such, the Constitution requires of our courts to be independent and subject only to the Constitution and the law. The latter must be applied impartially and without fear, favour and prejudice by every judge.
The Constitution accordingly sets certain criteria for the appointment of judges in order to enhance the credibility of judicial officers and to ensure that the courts can fulfil their crucial function as guardian of the Constitution and final arbiter of the law: first, section 174(1) determines that “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.” Secondly, section 174(2) provides 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.”
Section 174(1) sets the qualifying requirements: any woman or man who is appropriately qualified and who is a fit and proper person may be appointed as a judge. Thus, in order to be considered for appointment to the Bench, a person must be academically qualified to interpret and reflect the law. Such a woman or man must also be a fit and proper person – an objective jurisdictional fact based on a value judgement – requiring a person to have appropriate experience, conscientiousness and integrity so as to be entrusted with the responsibilities of being a judge.
It stands to reason that if a person is not qualified, or is not a fit and proper person, such individual can never be considered an appropriate candidate for the Bench.
In addition and in line with the transformational letter and spirit of the Constitution, section 174(2) provides for a further requirement: the judiciary must broadly reflect the racial and gender composition of South Africa. As such, race and gender must be considered when appointments to the Bench are made. The Constitution does not demand the Bench to be demographically representative of the population of South Africa and does not require race or gender to be a determining factor in the appointment of judges. Section 174(2) does, however, require from the JSC and the President to consider race and gender when appointing judicial officer to the Bench.
Section 174(2) is clearly a subordinate criteria to section 174(1) and not in itself a qualifying or disqualifying criteria for the appointment of any woman or man to the Bench.
The JSC’s interpretation and weighing of these criteria has, however, been a cause for concern. This is due to a widely held view that the JSC is more interested in “transforming” the Bench and its mindset, than in appointing the most suitable candidates as judges. A recent attempt by Chief Justice Mogoeng to clarify the latter’s interpretation of sections 174(1) – (2), has done little to allay this view.
The Chief Justice was recently quoted as saying that “merit does count but it is not all about merit. Transformation is just as important. We need to transform the judiciary so that the demographics are representative. That is the bottom line. It is nothing to be apologetic about.” He went on to say that if the JSC did not engage in “transforming” the judiciary, there was a risk that, 40 years from now, there would still be the same number of white men on the Bench as women and black judges.
The judiciary must, without doubt, be broadly reflective of the racial and gender composition of our society. As such, the Bench must mirror a society aspiring to achieve real equality. The Constitution, however, does not require the Bench to be demographically representative and does not give the JSC the powers to pursue such composition. It does require the Bench to be broadly representative – which, judging from statistics provided by the Minister of Justice and Constitutional Development in 2012, it seems to be. The Chief Justice’s assertion that the appointment of judges was not “all about merit“, is failing the test set by section 174(1). Any accused person facing life in prison, a parent standing to lose custody of a child, or a major corporation facing millions of Rand in civil claims, may tend to agree: race and gender matter less when you need merit – knowledge, experience and independence of mind – to consider your fate. The Chief Justice and the JSC, however, appear to be holding the view that transformation trumps merit in the appointment of judges.
Regardless of the very important transformational values and principles protected in the Constitution, sections 174(1) – (2) recognise the need for independent, appropriately qualified as well as fit and proper judges – who are broadly representative of society – to uphold the Constitution and the rule of law. Any other interpretation by the Chief Justice or the JSC falls short of the letter and spirit of the Constitution.