JSC lets politics trump excellence

THE present incarnation of the Judicial Service Commission (JSC) moves the goalposts so often that candidates for appointment to the bench sometimes appear to find themselves with a football on a golf fairway.

During the rerun of interviews last week for positions at the Constitutional Court, senior counsel Dali Mpofu questioned the candidature of two white men – advocate Alan Dodson SC and Gauteng high court judge David Unterhalter – and suggested their appointment would hinder transformation.

This was despite the court, for the first time in its history, not having any white men on its bench. Consequently, the constitutional requirement that the court “broadly” reflects the demographics of South Africa did not exclude either of them.

On paper, the candidates’ careers as public interest lawyers (and experience in other fields of law that could bolster capacity at the Constitutional Court); their jurisprudence in the high court, land claims court and Supreme Court of Appeal; and adjudicative work at international bodies like the World Trade Organization and United Nations suggested they were “fit and proper”.

Their legal backgrounds and judicial philosophies have kept time with a progressive Constitution. When it was raised with Dodson that he was not a judge, he pointed out the Constitution only prescribes that at least four of the apex court’s members be sitting judges when they are appointed. He implored the commission not to “shut” the door that the country’s founding document had left “open” for people like him.

Constitutional Court justices who were not judges when appointed include founding members Yvonne Mokgoro, Kate O’Regan, Albie Sachs and its first judge president (now chief justice), Arthur Chaskalson. Admittedly, there was a dearth of progressive-minded sitting judges in 1996 when the court was certified.

Neither Dodson nor Unterhalter had acted at the Constitutional Court, which appeared to count against them during their interviews. This, however, did not stop the commission from nominating Gauteng high court judge Bashier Vally, who has not acted at either of the appellate courts and whose interview was, arguably, the worst of the seven candidates. Allowable concessions

The Constitution seeks to make concessions for legal academics and non-judges to be appointed to the court, which has the final say on interpreting the country’s supreme document. Its drafters realised the need for diversity in that exegesis – in professional legal background, but also with regard to class, race, gender and experience.

This fits the broader national project that South Africa embarked on in 1994: one of inclusivity in diversity. It was a rainbow nationalist project that, as the scholar, Mahmood Mamdani observes in Neither Settler Nor Native, sought to bring apartheid’s violent perpetrators and its victims into the same political community by reconfiguring both as survivors.

South Africans “attempted to decolonise”, Mamdani observes, “by thinking anew their political relation to each other: not as others or rivals but as equals in law”.

The project suggests an inclusive generosity of spirit – not without a myriad of problems and evident contemporary failings – also inherent in the Constitution. Mamdani, in recognising the “incomplete success” of that decolonisation project, nevertheless considers it “remarkable” at the time for its vision of a new society, especially in terms of the bloodshed it averted.

It is a demand for diversity the Constitution also makes in the configuration of the JSC itself, with commissioners drawn from lawyers, judges, politicians and academics.

Ignorant choices

The JSC has, in the past, demonstrated a spiteful reticence to appoint white men with impeccable struggle and legal credentials to the bench. Finding esteemed silk Geoff Budlender not suitable for appointment is certainly an example that stands out.

As one former JSC member said after a rancorous 2013 interview of Eastern Cape high court judge Clive Plasket, who did not gain a nomination for appointment to the Supreme Court: “It’s not that the commission doesn’t appoint white males, but that it appoints compliant, weak white judges rather than strong independent-minded ones.”

There is a flip side to the argument of “messaging” that Unterhalter’s nomination would send.

He has a record of mentoring some of the country’s top black advocates, including Vincent Maleka SC, Tembeka Ngcukaitobi SC and Lwandile Sisilana, all of whom nominated him for these interviews.

Regardless of their race, these are some of the country’s best lawyers and the next generation of judges. None can be considered a stooge, and all have recognised the value Unterhalter would add to the Constitutional Court with all its current problems. So whose feelings are the JSC purporting to protect?

A few years ago, the great human rights lawyer George Bizos, who sat on the JSC as a presidential appointment of both Nelson Mandela and Thabo Mbeki, said it was essential for commissioners to vote with their conscience, not for their constituencies.

Can these commissioners claim to have done so with the list they sent to the president?