Will Gauntlett be appointed to the Constitutional Court?

In the legal community you find mainly three types of lawyers. You get the good lawyers who you call up for the straightforward cases. You get the great lawyers for the complicated cases, generally those you want to get to the Constitutional Court. Then you get lawyers like Jeremy Gauntlett, the lawyer that presidents, ministry departments, judges and very important business call up when things aren’t just complicated, they’re beyond salvation. Simply put, Gauntlett is Harvey Spector.

The recent saga with Gauntlett has brought up two very crucial issues. Firstly, what exactly are the Judicial Service Commission’s (JSC) requirements for you to become a judge? And secondly, can the Harvey Spector of the legal community be a ground-breaking judge in a constitutional democracy?

JSC requirements: being humble?
Gauntlett has twice before been unsuccessful in becoming a Constitutional Court judge and recently was turned down for a seat on the Western Cape High Court bench for the reported reasoning that he is not “humble” and doesn’t have the right kind of “judicial temperament”. I started laughing when I read his CV. It emanated quite the opposite of what the JSC alleged of his personality. His CV is probably one of the most humble documents I’ve seen in a while. He doesn’t highlight any of his achievements. The judgments he gives and the cases he has defended are understated and the average person would probably think he is an average lawyer.

The JSC should whip out the criteria documents it used when assessing the acceptability of lawyers to become judges. The Constitution provides that to be a judge in South Africa — according to section 174 (1) — you must be qualified and a “fit and proper person”.

There are eight black judges (including Zak Yacoob) and three white judges on the Constitutional Court bench. There are nine males and two females. The bench is already very racially diverse and thus if Gauntlett had to be appointed it would not drastically change the racial composition of the bench. But the bench is not very gender diverse and this might count against him in the event that there are female applicants to the Constitutional Court vacancy. In the event that Gauntlett had to be appointed it would not change the gender composition of the bench. In terms of racial and gender composition it should have been much easier for Gauntlett to be appointed to the Western Cape High Court bench.

Being a lawyer vs being a judge
In a recent case Gauntlett was counsel for Freedom Under Law. The case dealt with the fact that President Jacob Zuma made a decision to request the chief justice of South Africa to continue performing active service as chief justice in terms of section 8 (a) of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001. The court held unanimously that the president’s decision was “inconsistent with the Constitution and invalid and that the consequent extension of the term of office of the chief justice is of no force and effect”.

Gauntlett has been involved with high-profile cases and it seems as if he is being punished for being a brilliant lawyer. When you are asked to handle a case and you accept it, it is important that you do your best to win. That’s what lawyers do. That’s their mandate. The mandate of judges is very different. Their mandate is to take all the respective factors and evidence into account and make a judgment in accordance with the law and uphold the values of the Constitution.

He has shown through his previous judgments that he is very capable of being a judge and more specifically a judge of the Constitutional Court of South Africa. His application has also been strengthened through Sir Sydney Kentridge QC and Mamphela Ramphele’s nominations. So we ask ourselves, will Gauntlett become a Constitutional Court judge? Probably not. Should he become a Constitutional Court judge? Definitely.