JSC race, merit debate must not bring judiciary into disrepute

As SA matures, South Africans must take time to reflect on the foundation they’re erecting their democracy on. Such introspection demands asking tough and uncomfortable questions. They cannot be answered based only on politics, knowledge or experience. The answers will require foresight and a vision of a future (and better) South Africa.

One such uncomfortable question is about the empowerment of previously disadvantages groups. South Africans should ask themselves: What is the real purpose of affirmative transformation? Does it aim to merely substitute white faces with black ones or does it seek to transform public and private institutions to reflect South Africa’s racial demographics?

At first blush the answer seems very simple but it’s not, and it should not be. A simple answer, however attractive, may prove dishonest. Such a mistake will prove catastrophic not just for South Africa’s democratic and constitutional institutions, but also for the spiritual development of the nation.

The challenges facing the Judicial Service Commission (JSC) are one juncture that should sound an alarm that the simple answers are not necessarily the correct ones. These challenges should remind South Africans that a strong democracy must be built on a foundation of painful honesty. Without an honest and necessarily painful day’s work burrowing a deep foundation, South Africans will be left with a “democracy” built on rhetoric and politicians’ short-term interest in public office. It is future generations that will have to deal with public institutions that crumble at first sight of stress.

I should state upfront that my aim is not to criticise the JSC, its method or priorities. I am neither qualified nor capable. I aim only to highlight an important national challenge that requires sincere engagement by all South Africans.

The JSC is a constitutional institution created by section 178 of the Constitution of the Republic of South Africa, 1996. Its functions — defined by the Constitution and supplemented by the Judicial Services Act of No 9 of 1994 — include interviewing potential judicial candidates, recommending potential appointees to the president and advising the government on general issues relating to the judiciary. It is thus clear that a strong, effective, independent judiciary will require an effective JSC and commissioners who work for constitutional imperatives without the mirage of short-term political interests.

Section 174(2) of the Constitution provides that: “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.” Based on this provision and various other values and objectives of the Constitution, the JSC has undertaken to ensure “transformation” of the judiciary in its appointments and recommendations.

The objective of transformation, although imperative, is not without problems. One such problem is balancing “transformative appointments” with the merit and excellence required for an efficient judiciary. The allegation in this regard is that the JSC has prioritised transformation and thus, according to former JSC commissioner Izak Smuts, created “a very real perception in certain quarters that the JSC is, in general, set against the appointment of white male candidates except in exceptional circumstances”.

In his resignation letter Smuts cites instances where the commission has “ … left a trail of wasted forensic talent in its wake which would be remarkable in a society rich in human resources, and is unintelligible in a society such as ours in which, for reasons of our discriminatory history, such resources are scarce”.

Smuts’s comments are sincere as they are problematic. The imperative of transformation is generally premised on the need to advance previously disadvantaged groups. The necessity of such transformation is unquestionable but the method needs rethinking. The unavoidable question is whether transformation must disregard “merit”. Hurried transformation runs grave risks.

Transformation must not bring the judiciary into disrepute. Transformation must not bring into question the independence of the judiciary or the ability of judges to “apply [the law] impartially and without fear, favour or prejudice”. The judiciary is currently recovering from the so-called “constitution crisis” of the 1950s where the National Party packed the judiciary with sympathetic judges. As a result the judiciary lost independence and credibility. Credibility of the judiciary is indispensable in a democracy.

The related point is that inappropriate transformation is unfair to black candidates and women, more so than it is to white candidates who are overlooked. Judges are overworked and underpaid. If one ignored the prestige of serving the country as a judge, candidates like advocate Jeremy Gauntlett or advocate Geoff Budlender are better off as advocates. They make more money, they have greater intellectual freedom and less public scrutiny.

Black appointees and women on the other hand suffer the worst injustice and embarrassment. They are inadvertently being told that they were appointed to the bench “without merit”. Many such judges are appropriately qualified and they serve the country impeccably.

Professor Pierre de Vos correctly argues that “there is an urgent need for the JSC to re-visit its conceptions of ‘merit’ and ‘transformation’ to avoid the unjustified stereotyping of black and female candidates as generally possessing inferior ‘merit’ “.

This is imperative not just for the judiciary but for all institutions where transformation is necessary.