Izak Smuts SC did a great service to the debate about racial transformation of the Judiciary by expressing his views so forthrightly. But he was wrong to resign. His voice should be heard on the Judicial Service Commission (JSC). Some of the politicians and judges, not all, who serve on the JSC need a good smack across the chops every now and then.

People with profoundly held views should not give up and leave the field to less ideologically certain and less pugnacious individuals who might fill the vacuum. Our future as a constitutional democracy needs people who fight to put things right.

Smuts seems to me to talk in absolutes, however, whereas I believe transformation is more complex and requires a nuanced and careful balancing of the choices, none of which is simple. Sensible South Africans realise that an all-white, all-male judiciary was untenable. It had to change. White= merit does not wash. Male=merit also is wrong. But so is Black=merit or Female=merit.

One needs to balance the totality of the qualifications, the merit, the experience, the judicial and legal record, the race and the gender of each of the available candidates and make a choice, bearing all the constitutional imperatives in mind.

Mistakes will be made. As a member of the JSC I made the grievous error of supporting Judge John Hlope for appointment as Judge President of the Western Cape. I have previously publicly apologised for that error of judgment. I thought a senior judge with a Cambridge PhD in law merited promotion.

Smuts mentioned the waste of talent in the JSC process. I agree with that. Some truly outstanding people have been passed over. In discussing the wastage of talent, one thinks also of people like John Myburgh, a highly regarded judge who ended up resigning.

I suspect Smuts falls into the talent wasted category. Despite his obvious merit, I cannot see him agreeing to appear before the JSC for appointment as a judge.

I would not have supported Jeremy Gauntlett in this round. When an aspirant becomes a political cause, nominated by a plethora of politicians, the alarm bells must ring. We do not elect judges in South Africa by popular vote. The JSC was right to reject him this time, just as it was quite wrong to reject him previously. What would happen if someone (unsuitable) like Ngoako Ramatlhodi, who has a history, applied and had his nomination supported by a petition signed by a hundred thousand ANC members?

All of this matters. The debate is healthy and needs to be conducted. Transformation will be with us for many years yet. The JSC needs to reflect on its role and mandate and communicate properly with our citizens. It has to justify its actions and choices as part of the accountability of democracy.

I helped draft the constitutional clause that created it and I served on the JSC for some years. I recognise all its imperfections. It is still a good deal better than the system where the Minister of Justice appointed judges. Can you imagine if Jeff Radebe could make cadre appointment to the judiciary? One shudders.

Douglas Gibson is the former Opposition Chief Whip and Ambassador to Thailand. He can be followed on Twitter @dhmgibson

This article first appeared in The Citizen.

Click here to sign up to receive our free daily headline email newsletter