A book could be written on anything that was wrong with the conduct of last week’s procedure. We should be alarmed.
Cheers to the Judicial Service Commission (JSC) for their recent hearings on the nomination of candidates for vacant positions in the bank. The recommendations of Judges Mahube Molemela and Fayeeza Kathree-Setiloane for the Constitutional Court and Judge Nolwazi Mabindla-Boqwana for the Supreme Court of Appeal are excellent decisions. These three will no doubt rule in the highest courts with legal grace and sagacity. The recommendations are a severe blow to both demographic and intellectual change.
Unfortunately, this is where the reason for cheering ended. Both the conduct of the hearings and some of the appointments challenged the role of the JSC. A book could be written on all that was wrong with the conduct of these recent procedures, but for the purposes of one column three points must be emphasized.
The interview with Justice Dhaya Pillay was a shame
To be clear, Professor Balthazar agreed to the decision to remove Justice Dhaya Pillay from the list of five recommendations for appointment. However, EFF representative Julius Malema was allowed to pursue his hatred of Pravin Gordhan without qualification to such an extent that he sought Justice Pillay’s ability to judge wholly unjustified.
Remember, Judge Pillay is a longtime judge good enough to be successfully recommended for tenure in the Constitutional Court. She is expected to rule before the Constitutional Court as part of her judicial duties and before the Supreme Court at the end of a term.
What was it like that Malema was allowed to try at a JSC hearing to completely undermine the legitimacy of a judge? Where was the recognition of the need to question candidates closely without defaming them or in tremendous ways undermining their continued credibility as seated judges?
But instead of intervening as previous chief judges would do at JSC hearings, Chief Justice Mogoeng Mogoeng put pressure on five years after the event and suddenly remembered a conversation with Gordhan, from which it was concluded that Gordhan wanted to intervene judicial appointment. The minister presented a detailed report of his meeting which confirms all conclusions of inappropriateness. The Chief Justice owes the public a similarly detailed report, as well as an explanation of why he did not mention Gordhan’s conduct was inappropriate for five years.
The interview with Judge Pillay was not the only such case, however.
Assistant Judge-President Aubrey Ledwaba was subjected to a similar excoriation because he decided, for clear legal reasons, as he explained, in favor of President Cyril Ramaphosa and sealed the bank accounts of the CR17 election campaign. Participating in the prevailing discourse was the President of the Supreme Court of Appeals, Mandisa Maya, who asked Judge Ledwaba if he was a corrupt judge. To be fair, Judge Maya may have tried to protect Judge Ledwaba by giving him the opportunity to respond to an apparent smear campaign against a good, independent judge. But why ask the question in an atmosphere in which it seemed to this observer that the JSC had been taken over by the EFF and the Zuma wing of the ANC, so that unfounded allegations were made against judges investigating them had?
This leads to another disturbing implication.
Given the treatment of Judges Pillay and Ledwaba, any judge who has ambitions for higher justice can ponder the consequence of a judgment that the EEF / Zuma wing considers contrary to their interests, regardless of the apparent legal justification for the finding . As another example, Malema asked Judge Elias Matojane even though he had awarded Trevor Manuel R500,000 in damages in his case against the EFF, even though he refused to ask the question. That a litigator’s question to a judge who tried the litigator’s case can be asked at a JSC hearing without it being wrong is really mind-boggling.
Another problem was the continuation of the attack on the so-called Top Six (whoever they are) of the Supreme Court of Appeals. If a junior appellate judge is bullied, there are JSC procedures in place to deal with such behavior. However, the public pursuit of ostensible vengeance against a court whose outcome at hearings to determine eligibility for appointment is more than favorable than that of the Constitutional Court serves no other purpose than to undermine the legitimacy of a major court court in the eyes of the public.
The refrain that white candidates shouldn’t apply because there were more than competent black candidates
It is clear that demographics are a critical factor in the appointment of judicial officers. This also applies to the commitment to ensure that the constitutional vision is turned into a reality for millions of South Africans who live on the edge and have done very little to meet the constitutional obligations. Therefore, while race and gender must be considered by the JSC, this body should also ask: Judging from the candidates’ filings, legal philosophy, and answers to pertinent questions, which appointment will promote the improvement of millions in need of jurisdiction that can help change the lives of these South Africans, the overwhelming number of blacks?
This identity is not a guarantee of such results. This emerges from recent history, when the corruption of state funds that should have been used to improve the lives of those most in need had no racist features. That is, the rent-seeking cohort consisted of both white and black crooks. The simple point is that having a sustained record showing commitment to social and economic change is important so identity alone cannot be the only criterion for judicial appointment.
While some members of the JSC may hold to this view, Section 174 (2) of the constitution prescribes otherwise.
Last week’s hearings could pose a real threat to the non-racist constitutional idea, the rationale of the independence of the judiciary and the development of a judiciary that begins with concern for the most vulnerable. And on the latter point, concern for demographics in many cases fulfills that obligation, as evidenced by the three distinguished women recommended for promotion. However, this does not excuse the racial essentialism that now dominates the JSC.
And in conclusion, South Africa really must be blessed with vast pools of scorching legal talent if it can afford to turn down Judges Owen Rogers and David Unterhalter, two lawyers who would grace any apex court in the world! DM
In real life, Professor Balthazar is one of the leading legal personalities in South Africa. He wants to remain anonymous so that his daily tasks are not impaired.