Mystery, judges and the JSC

I am not a woman of mystery. I am one of those people who tell you your fly is undone, or that your payment is late. This is not because I don’t like a bit of mystery, especially the mysterious cloak of secrecy that the law casts around judges.

In the Supreme Court of Appeal, a little crimson curtain swishes open to reveal the five judges entering the courtroom. In the Constitutional Court it is a little less theatrical, but there is that silence that descends on the room, and the sense of something about to happen. It’s a mystery the law loves only too well. Of course, too much mystery and you get complete confusion all round, which is where we are with Judge Hlophe.

What did he say? What did the judges say? What does the minority (if there was one) of the judges think? Did he take the money from Oasis? Why didn’t he recuse himself from the decision about Desai? The conclusion that more transparency would be helpful does not need a rocket scientist.

The process of appointing judges is also mysterious, but less determinedly so. That seems to be more a result of lack of interest on the part of academics, clients, lawyers and journalists than actual obfuscation.

When the Judicial Services Commission (JSC) sits and considers who it will appoint to the bench, it takes, for example, no submissions from civil society. This is probably wise, because I am not sure whether those of us left in civil society would be able to say anything coherent. This is not entirely our fault — how can you comment on a candidate’s judgements on transparency, or rape, or parking fines for that matter, when they are not publicly available?

This rather remarkable flaw in the process means that you get rumour and conjecture about a candidate, a certain amount of winking and nodding from the judges already appointed, and some input from the Bar from which that person comes, but no solid analysis of his or her decisions as an acting judge either as a submission to the process or as a result of it. And that is the basis for the appointments. So I suppose the JSC is used to doing things in a rather clubby, old-boys’ way, and it has fallen back on its instincts in this case also. But this fuss is only about one judge — Hlophe is only one judge, after all — but not the process of the JSC more broadly, and not about how we constitute our bench. Which may be a slightly bigger problem.