CRITERIA FOR THE APPOINTMENT OF JUDGES
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." 
"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."
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."
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."
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.
 "Judicial Selection in South Africa", p. 60, Democratic Governance and Rights Unit of UCT, October 2010.
 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 2003 March Cambridge Law Journal, p. 55 -71, with the permission of the author.
 Prof Kate Malleson, "The New Judiciary: Rethinking the Merit Principle in Judicial Selection", Journal of Law and Society, February 2006, p. 216.
 "The troubled state of South Africa's judiciary", Judge Carol Lewis, address to South African Institute of Race Relations, Johannesburg, 14 October 2008.
By Dave Steward, Executive Director of the FW de Klerk Foundation
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