It is argued that the interpretation placed on section 174(2) of the Constitution by the JSC elevates the race element into ‘an imperative of the constitution that must be complied with come hell or high water’.
Paul Hoffman is with the Institute for Accountability in Southern Africa and his article JSC’s demographics pursuit violates SA’s constitution was first published in Business Day on 13 November 2012 and these are random extracts.
THE question probably uppermost in the mind of retired deputy president of the Supreme Court of Appeal Louis Harms is whether the Judicial Service Commission (JSC) has rationally explained its preference for attorney Mokgoatji Dolamo from Mpumalanga over his nominee, Cape silk Jeremy Gauntlett, for one of the five vacancies in the Western Cape High Court. The essence of the explanation is that the JSC would be “doing violence” (its words) to the provisions of section 174(2) of the constitution were it to perpetuate the alleged oversupply of white male judges in the Western Cape by appointing two white male applicants instead of one. This suggests a race-based “slate” designed to limit the number of white males introduced to the Cape bench, presumably until it reflects a content that matches national demographics, of 5%, or provincial demographics perhaps, where the proportion is somewhat higher.
The notion of achieving a perfectly balanced judiciary which mathematically reflects race and gender demographics in the country is deeply and darkly unconstitutional. This is because nonracism and nonsexism are foundational to our new order. Ideally, litigants should want a good judge, no more and no less. The equality clause in the Bill of Rights contemplates affirmative action for previously disadvantaged individuals or groups in order to promote the achievement of equality. The clause does not equate race and disadvantage, but the JSC seems to think that to do so is legally acceptable. It hangs its hat on its tortured interpretation of section 174(2) of the constitution: “The need for the judiciary to reflect broadly the racial and gender composition of SA must be considered when judicial officers are appointed.”
The JSC has elevated the race element of this consideration into an imperative of the constitution that must be complied with come hell or high water. The basic requirements, “appropriately qualified” and “fit and proper” people, seem to play second fiddle. This is to the detriment of the quality of the bench and the proper administration of justice.
It is obvious that a race-based slate system, lubricated by a well-whipped African National Congress caucus, is in place in the JSC. The very proper need to consider race appropriately has been elevated to an imperative in the JSC’s work. It is true that the legitimacy of the bench is affected if all the judges are seen as strangers by the population they serve. However, the helter skelter rush to replace able candidates with poor ones does not serve the public interest, the upholding of the rule of law and the proper administration of justice. Replacing the naked racism of apartheid with a race quota system is not a viable way to create a non-racial and non-sexist order. Litigants will not choose arbitration over litigation when they have confidence in the merit of judicial appointments. It is only when two equally meritorious candidates are competing for the same vacancy that demographics can be brought into play. This is not what happened in this instance.
It is to be hoped that Harms will launch a review of the decision to overlook Gauntlett in favour of Dolamo, not due to the personalities involved, but because it is important that the JSC’s interpretation of the section of the constitution be subjected to the scrutiny of the Constitutional Court in the interests of clarity and certainty for the future.