FROM THE ARCHIVES: The great ConCourt mystery

Why are SA's top jurists so reluctant to apply for a position on our highest court? (2008)

Earlier this week Business Day reported that applications for a vacant position on the Constitutional Court had had to be reopened due to the "weak" calibre of the handful of applicants. They included two high court judges, one magistrate, one former academic, and a land claims court judge. Notably, no judge from the Supreme Court of Appeal, the next highest court, chose to apply. Once the decision was made to begin again with the nominations, judges from that court had to be actively lobbied to throw their hats into the ring.

Business Day's source told the newspaper that "it was ‘really worrying' that the pool of choices for the Constitutional Court was so small and weak, not drawing enough candidates from the ‘outstanding options available'."

This story poses something of a puzzle. The Constitutional Court is the highest court in the land and, in theory, the most prestigious. And yet top South Africa's top legal minds are reluctant to apply. Why is this? That Business Day and The Times have had to cast around explanations is a reflection of an earlier ‘four legs good, two legs bad' approach to much of the reporting on earlier appointments.

The background to this story is that in 1998 the ANC successfully politicised the work of the Judicial Service Commission, the body tasked with the appointment of judges. Its primary goal was shifted away from protecting the integrity of the judiciary towards ensuring the attainment of the ANC's political objectives. In making appointments - or recommendations, in the case of the Constitutional Court - the overriding concerns became ‘African leadership', ‘demographic representivity', and ensuring a politically sympathetic bench.

Even so, up until the end of the Mandela presidency, vacancies on the Constitutional Court attracted high quality applicants. Shortly before his term came to an end the Judicial Service Commission forwarded four names to President Mandela for a decision on who should fill the vacancy left by the late Judge John Didcott. These were Justices Sandile Ngcobo, Edwin Cameron, Andre Erasmus, and Kees van Dijkhorst.

Business Day reported, on June 1 1999, that the Constitutional Court President Arthur Chaskalson had, backed by the commission, recommended to Mandela that Cameron be appointed: "Sources said Mandela was happy to go with the commission's informal recommendation, but that Mbeki's office intervened, arguing that the current racial composition of the court was unacceptable and that the position had to go to the strongest black candidate." Judge Ngcobo was duly appointed.

The newspaper quoted an advocate as saying that while Ngcobo was an "able and solid judge" Cameron was "in a league of his own. One can only conclude that in this instance, the importance of race trumped the importance of cutting edge jurisprudence."

Over the course of his presidency Mbeki's appointments to the Constitutional Court were characterised by ‘negative selection.' As under Communist systems "ideological, organisational, and personal loyalty" was preferred over competence, and independent-mindedness.

In terms of the Constitution Mbeki was required to go through the motions of consulting with the then leader of the opposition, Tony Leon. In his autobiography, On the Contrary, Leon sets out the perverse quality of some of the appointments made by Mbeki. In 2004 two of the most formidable jurists in the country, Johann Kriegler and Laurie Ackermann, were due to retire from the court. In November 2003 nine candidates were interviewed for the vacant positions one of whom was Jeremy Gauntlett SC.

Leon writes that Gauntlett "was one of the busiest and brightest advocates in South Africa... [and] would, by common consent in legal circles, have made a significant contribution to the Court. But he was not one of the names forwarded by the JSC to Mbeki for consideration."

The five names forwarded to the President were Justices BR du Plessis, Christopher Jafta, YS Meer, Thembile Lewis Skweyiya and JV van der Westhuizen. Mbeki's legal advisor, Mojanku Gumbi, wrote to Leon advising him that the president was ‘considering appointing' Skweyiya and Van der Westhuizen.

Leon notes "It was clear that the choices were flavoured by the nominees' close connection to the ANC. Senior members of the Bar and judiciary were dismayed at the exclusion of [Ben] du Plessis, who had already acted in the Constitutional Court, and was generally regarded as the top jurist in contention." By contrast, at the time he had to deal with the issue, Leon writes, a family he knew in Johannesburg had been waiting for two years "for Van der Westhuizen to deliver a judgment on a relatively simple matter."

In his response to Gumbi and Mbeki Leon wrote: "It is... inexplicable barring some other act which is not evident from the papers [you submitted to me] as to why Du Plessis has not been preferred, whereas, for example, Van der Westhuizen had no court experience pre-appointment and has not written judgments of significance."

Mbeki nonetheless went ahead with the appointment. The Van der Westhuizen appointment was significant because when Mbeki was presented with a choice between two Afrikaner candidates (rather than say a black and a white one) he deliberately chose the less able person.

The next vacancy was occasioned by the departure of the last of the big beasts on the court, Chief Justice Chaskalson. Leon writes, "The choice was essentially between Professor Cora Hoexter and Ms Justice Bess Nkabinde. Sheila Camerer [the DA MP on the JSC] advised that Hoexter ‘did an excellent interview and stood out as the obvious candidate.' Nkabinde was a relatively obscure judge from the remote reaches of North-West Province. Her record suggested no significant background in constitutional law. But Nkabinde was given the nod."

Given this context it is hardly surprising that high calibre candidates are reluctant to apply for a vacancy on the Constitutional Court while Mbeki and Gumbi are still making the final selection. It is indicative of the perceived unfairness of past appointments, that none of the better candidates who were previously passed over have chosen to reapply when a new vacancy opened up.

There has been another consequence of this series of poor appointments, and that is that the court has lost much of the prestige it enjoyed (within the legal profession) during the Mandela-era. As Chaskalson himself noted, in an interview with The Times this week, "People accept appointment to the bench for various reasons. They are ready to take pay cuts, for instance, all for the honour and prestige of the position. If this honourable status is taken away, there is nothing left."

Nine years after Mbeki intervened to block his appointment, Judge Edwin Cameron has put forward his name forward for the (reopened) vacancy on the Constitutional Court. His candidacy is a test of the old Presidency and the new ANC - and the degree to which this society is moving away from its Mbeki-ite obsessions.

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