| CRITERIA FOR THE APPOINTMENT OF JUDGES
By Dave Steward, Executive Director of the FW de Klerk Foundation
The failure of the Judicial Service Commission once again to recommend Adv Jeremy Gauntlett for judicial appointment raises concerns that it is giving too much weight to race and not enough to whether candidates are fit, proper and appropriately qualified.
The mandatory requirements for judicial appointment are set out in 174(1) of the Constitution which states that “Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer.” The word “any” means that there should be no distinction with regard to the race or gender. The words “fit and proper” allude to the personal qualities of honesty, integrity and reliability and to the professional requirements of experience, learning and judgment. Candidates must also be able to act with complete independence and without “fear, favour or prejudice” in accordance with section 165(2). They should also unambiguously identify themselves with the transformational and other values upon which the Constitution is founded.
This does not detract from “the need for the judiciary to reflect broadly the racial and gender composition of South Africa” as required in terms of section 174(2). It is clearly desirable that citizens seeking justice should be able to identify with the judiciary and that the judiciary should reflect the gender, racial and cultural diversity of our people.
However, as the words “consider” and “reflect broadly” indicate, this is not a mandatory requirement. Its purpose is rather to guide the JSC when it has to consider the appointment of judicial officers from among a number of candidates from different communities with approximately similar qualifications who can all comply with all the requirements in section 174(1).
According to the University of Cape Town’s Democratic Governance and Rights Unit
“…many express the view that being black, or being a woman, constitutes a valid criterion for judicial selection. This approach is misleading because the criteria for judicial selection are that a person be appropriately qualified and a fit and proper person. If a person is not appropriately qualified and is not a fit and proper person, it is irrelevant whether they are black or female. That person does not qualify for judicial office.” [see footnote 1]
Nevertheless, there is a perception that section 174(2) is increasingly being interpreted as having more weight than section 174(1). According to former Chief Justice Johann Kriegler
“The constitutional mandate instructs the Judicial Service Commission in section 174(1) to appoint people that are appropriately qualified. That’s a precondition. That’s a mandatory requirement. And then subsection (2), as a rider to that, says: and in doing that, have regard to the racial and gender balance on the Bench. And it’s for obvious reasons that the Constitution, while mentioning the transformational criterion in subsection (2), demands in subsection (1) as the primary and essential requirement that appointees be appropriately qualified. Now these two essential factors, the one absolute and the other discretionary, have been turned on their heads.”
There are also concerns that section 174(2) is being misinterpreted as constituting a need for a bench that is ‘representative’ of this or that constituency, rather than a bench that reflects the ‘diversity’ of our society. The desirability of a diverse rather than a representative bench has been eloquently expressed by Sir Sidney Kentridge QC:
“The concept of representativeness may be quickly discarded. A more fruitful concept is diversity. Diversity in a court of final appeal is in my view good in itself. This does not mean that a woman judge on the panel, or a judge from a different ethnic background will necessarily decide a case differently from a white male judge. But their presence could enrich the court.”
Speaking of his experience of the diversity on the South African Constitutional Court, Kentridge went on to say
“I have no doubt that this diversity gave the court as a whole a maturity of judgment it would not otherwise have had. Yet no-one, black, white, male or female was representing any constituency (emphasis added). The South African constitution states only that the need for the judiciary to reflect broadly the racial and gender composition of the country must be considered when judicial officers are appointed. That was achieved.” [see footnote 2]
Also, according to Prof Kate Malleson,
“…the need for judges to be independent and impartial means that we should not talk about a representative judiciary in the same way as we might the legislature and executive. Judges are not there to represent the interests of any particular group but to ensure that the law is applied fairly and equally to all.” [see footnote 3]
The excessive consideration that has been given to section 174(2) may also have had a detrimental effect on judicial standards and performance. On 14 October 2008 Judge Carol Lewis expressed the following views in this regard – for which she was subsequently severely reprimanded by the JSC:
“In 1996 the final Constitution changed the structure of the JSC so that it now comprises a majority of politicians rather than lawyers, with obvious consequences. There is a perception now that political fealty is a more assured path to appointment as a judge than ability.
“The appointment of lawyers with minimal court experience to the high courts has done the public no service. In the major commercial hub of the country, Gauteng, there are few judges with any legal commercial experience left on the bench. Of the 63 judges there less than 20 per cent appear to have any substantial experience of commerce. And there are 23 vacancies on the Pretoria and Johannesburg courts, largely filled with acting judges from the bar who give of their time and experience but do not take permanent judicial appointments. I am advised that the work of dealing with the motion rolls in the large courts falls on the shoulders of the few with the experience to manage it – and that the consequences of that are not only unpleasant for those too heavily burdened but detrimental to litigants.
“It is not only commercial litigants who suffer the lack of experience on the part of many high court judges. There have, in criminal matters, been horrifying convictions and equally horrifying acquittals where judges have simply not understood the fundamental rules of evidence or of criminal law. I shall not dwell on these. They are a matter of public record. Suffice it to say that the time has come to accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that judicial education is ongoing and that new appointments are made only because of skill and experience and not solely because of race, and especially not political fealty.” [see footnote 4]
Section 174(1) should clearly enjoy precedence in determining the suitability of candidates for judicial appointment because the standards it contains are essential for the effective functioning of any judicial system based on the rule of law. Also, for most people seeking justice before our courts, the honesty, integrity, learning, experience and impartiality of judges are of much greater importance than their race.
Footnotes:
1: “Judicial Selection in South Africa”, p. 60, Democratic Governance and Rights Unit of UCT, October 2010.
2: Sidney Kentridge QC, “The Highest Court: Selecting the Judges.” Address delivered as the second Sir David Williams Lecture, Cambridge, 10 May 2002. Reproduced from the May 2003 March Cambridge Law Journal, p. 55 – 71, with the permission of the author.
3: Prof Kate Malleson, “The New Judiciary: Rethinking the Merit Principle in Judicial Selection”, Journal of Law and Society, February 2006, p. 216.
4: “The troubled state of South Africa’s judiciary”, Judge Carol Lewis, address to South African Institute of Race Relations, Johannesburg, 14 October 2008.
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WHOSE WAY – WHOSE LAWS – WHOSE IDENTITY?
WHOSE WAY – WHOSE LAWS – WHOSE IDENTITY?
By Dave Steward, Executive Director of the FW de Klerk Foundation
President Zuma’s recent comments in the House of Traditional Leaders on the need “to solve African problems in the African way” and his rejection of the “white man’s way” go to the heart of many of the misunderstandings that continue to divide our society.
The President said that black South Africans should not “be influenced by other cultures and try to think that we have the wrong values”. He observed that lawyers dealt with cold facts but “what they don’t tell you is that these cold facts deal with warm bodies”.
President Zuma urged the House of Traditional Leaders to “solve African problems the African way – not the white man’s way”. He added that some Africans “who become too clever” were “most eloquent in criticising themselves about their own traditions”. He called on the House of Traditional Leaders to “to help all of us” to avoid a situation where “we do not understand who we are… because if we are not an African, we cannot be a white, then what are you? You don’t know. You cannot understand. How then can you grow children? And then the nation cannot understand who this nation is”.
President Zuma concluded by saying that “freedom gave us the opportunity to redefine ourselves as to who we are. We are Africans and we cannot change into something else. Even if I live in the highest building … I am an African.”
The President’s remarks dealt with the struggle that many black South Africans experience between their African identities and the powerful influence of western culture. Several years ago, I had the privilege of attending the fifth wedding of King Goodwill Zwelithini. The ceremony, which lasted over five hours in the stadium at Ulundi, began when the bride arrived in a late model Rolls-Royce dressed resplendently in a voluminous white lace wedding gown. The King looked most elegant in his morning coat and top hat – as though he had just slipped out of the royal box at Ascot. The couple were then married in a Christian ceremony – despite the fact that the King already had four previous wives.
After the Western ceremony the bridal party withdrew and then returned some time later dressed in their traditional attire. The new queen led a shuffling parade of Zulu maidens around the arena and the King appeared in his traditional regalia with leopard skins, sporting the highest feather of all his courtiers. There followed a long period of dancing and singing of ancient Zulu hymns. One of them was about a successful cattle raid againsteHobelani (who, according to my interpreter, was actually a Boer farmer by the name of Grobbelaar). The ceremony reached its climax when the clans of the bride and groom met in a large scrum in the middle of the stadium to hammer out the details of the marriage contract.
A similar dualism is reflected in the behaviour of our President. When he is addressing foreign leaders or businessmen he is dressed immaculately in a business suit. He slips easily into the western idiom and addresses audiences within the framework of Western values and preconceptions. On other occasions he revels in his Zulu traditions, dressed in his traditional regalia; singing Zulu and ANC war-songs (with quite a good voice); and rejoicing in his status as the husband of four wives and the father of many children.
Widely differing attitudes and approaches are linked to the two identities. The African identity is synchronised with the rhythms of nature. As Léopold Senghor put it, the African approach was ‘diametrically opposed to the traditional philosophy of Europe’ which in his view was ‘essentially static, objective’. European philosophy was founded on ‘separation and opposition: on analysis and conflict’. By contrast, African philosophy was based on ‘unity’, ‘balance’, negotiation and an appreciation of ‘movement and rhythm’. It rejoiced in “sensuality, rhythm, earthiness and a primeval past” which were precisely the characteristics that had for so long been criticised by Europeans.
At the heart of the South African dichotomy is the fact that ubuntu is based on communalism, co-operation and sharing – whereas western civilisation has been constructed on individualism, competition and the accumulation of property. The dilemma is that the Western approach is indispensible for the economic progress on which we all depend – while ubuntu – and compassion for “warm bodies” – might be equally essential for our humanity.
These differing cultural attitudes were reflected in President Zuma’s impassioned defence of his African identity. They may also lie at the root of divergent approaches to the problems of South Africa. What whites regard as corruption some blacks might view as a moral obligation to share good fortune with their friends and family; what whites regard as the illegal enrichment of senior office-bearers, black traditionalists might regard as the natural perquisites due to leaders; what whites regard as their own hard-earned land and property, some blacks might regard as unfair sharing of South Africa’s land and wealth.
Our Constitution is broad enough to encompass the aspirations and concerns of all South Africans. It makes provision for customary law and traditional leaders. It assures the right of all South Africans to use the language and to practise the culture of their choice. However, it also protects the rights of all citizens, regardless of race, culture or gender.
It is not “white man’s law”. It is the distillation of our own experience and the experience of successful societies throughout the world regarding the requirements for freedom, justice and success. That experience leads us to conclude that:
However, the Constitution is also suffused with the values of ubuntu.
If we wish to achieve success as a society we should follow neither the “African way” nor the “white man’s way”. We should follow “the constitutional way”.
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