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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.



  1. Sub Judice Sub Judice 16 April 2013

    Great question ‘What is the real purpose of affirmative transformation? ‘ Mogoeng Mogoeng refused to even discuss this point, which may be the most important in the whole discussion. The interesting observation is that the real agenda seems to have not much to do with racial transformation and equal opportunity and diversity, which are noble goals with the best intentions. There are many excellent potential black judges who have been rejected by the JSC. The REAL meaning of ‘transformation’ that one discerns in the ranks of party deployees, including now the deeply tarnished JSC majority, is to subordinate the state to the party, to ensure that the executive is above the law, to reduce the separation of powers so that the judiciary is subject to the executive and the party, and ultimately to destroy SA as a democratic state and to make it a Soviet-style party state. This has become glaringly obvious to all careful observers. The subverting of the legal profession and the attempt to silence these questions is only one example of this grand strategy. Men and women of honour and integrity, both black and white, need to fight this with every means possible.

  2. Tofolux Tofolux 16 April 2013

    Oh Brad, the erstwhile praise-singer of the elite. Can I remind you and others that there is NO challenge in the JSC. In fact, it is quite ludicrous and laughable that when some amongst us are not happy with tranformation, we have a ”crisis’. The only crisis we have is the SLOW PACE of transformation and those who are opposed to transformation. Smuts did transformation a good deed by resigning. In fact we call upon all like-minded individuals like him to resign from any position they hold.They are a stumble-block and they are in crisis. It must be said that blacks in general and Africans in particular except of course for praise-singers such as yourself, have been extremely patient with transformation. Why must we check with our previous oppressors if they are o.k with transformation. Why must we be called upon to ask of them to be referees in our gaining back our dignity, our freedom and our equality. It is these points of dignity, freedom and equality that is forgotten by them and you. It is quite embarrassing to ask of us to pretend that they continue to wrong and dismiss us. It shows their narrow, selfish and shallowness in rebuilding our society. I suggest you do some introspection and ask where is their responsibility to this country and our process of transformation. I suggest you ask why we need to have this entity transformed and I ask why they turn their backs on the interests of this country at ALL times. To what do they plead allegiance to?

  3. GrahamJ GrahamJ 16 April 2013

    178.2 “If the number of persons nominated from within the advocates’ or attorneys’ profession in terms of subsection (1) (e) or (f) equals the number of vacancies to be filled, the President must appoint them. If the number of persons nominated exceeds the number of vacancies to be filled, the President, after consulting the relevant profession, must appoint sufficient of the nominees to fill the vacancies, taking into account the need to ensure that those appointed represent the profession as a whole.”

    But the JSC refused to appoint white people to vacancies and thus have flouted the constitution. Period.

    Our Mr Mogoeng is being mischievous and frivolous. He must be impeached.

  4. Charlotte Charlotte 16 April 2013

    @ Brad. Excellent article. Clear-thinking and insightful with “foresight and a vision of a future (and better) South Africa.”

  5. The Creator The Creator 17 April 2013

    The trouble with this debate is that a lot of the judges currently in authority are, quite clearly, subservient to power and wealth, but unfortunately replacing them with judges who are also subservient to power and wealth (but happen to have different skin colours) is not going to change anything.

    I don’t know what “merit” means in this context; people like Smuts obviously mean “white”, but what do other people mean? What constitutes a good judge as opposed to a bad one?

  6. Momma Cyndi Momma Cyndi 17 April 2013

    It reminds me of our Police Commissioner. Thrown into a job she has not the tools or experience to deal with and making a mockery of every woman who clawed her way up the ladder.

    Our education system has not helped matters at all. We should have the pick of the crop from any racial group we want. Unfortunately, not getting books in high school sort of makes getting through a law degree or three unattainable.

  7. Dave Harris Dave Harris 17 April 2013

    Brad, if you could step out of your tribal mindset for a minute and tell us what exactly is “merit” in the SA context, how it is achieved and how we measure it, perhaps then you can then argue your case with more clarity instead of a boring high school debate.

  8. Jack Sparrow Jack Sparrow 18 April 2013

    @Creator: you say “quite clearly, subservient to power and wealth”. Just give me one judgement that proves your statement.

  9. Littlebobpete Littlebobpete 18 April 2013

    Great article Brad

    Sadly, the judiciary and the entire judicial system is already in disrepute, not necessarily because of race, but because of disfucntion. How many attorneys, advocates and even judges do you seen in the news for all the wrong reasons.

    Sadly, for a once noble profession, this entire profession has already sunk lower than politics and used car salesmen. They and their system are mere opportunistic guns for hire!

  10. Just a thought Just a thought 18 April 2013

    It was a commonly believed that should George W Bush receive a second term in office he would push for dominance in the judiciary to obtain political retribution against his detractors. JZ got a second term and look, he is firing on all cylinders to gain control of the judiciary. He’s just purged the youth league and reshuffled his cabinet so all that’s left is are the people who currently uphold the constitution.

    The power of the judiciary in the hands of a few (regardless of whether it was obtained by force our through the elective) is the road to tyranny. This was quoted over 100 years ago by the fourth president of the USA (maddison).

    Our liberators are becoming the new Nats, what an irony. But, history always repeats itself…

  11. Littlebobpete Littlebobpete 18 April 2013

    Aaah……there goes Dave Harris again……attacking the man without coming up with any reasonable debate himself…….good on you mate…….do what the ruling party does…..stifle debate and attack the messanger

  12. Enough Said Enough Said 19 April 2013

    Appointments should be on merit.

    To get the correct racial/gender mix, special attention should be given to training people from groups that are not adequately represented.

    Appointing people merely for the sake of transformation has cost this country very dearly in the last 20 years, and if this continues it will set future generations of lesser privileged people even further back.

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