Advocate Jeremy Gauntlett SC has now been overlooked for the fourth time for appointment to the High Court purportedly because of his ‘temperament, in particular his alleged lack of humility and tendency to be acerbic’. It is hard to believe that humility, which means ‘modesty, meekness, shyness and unassuming nature’ are essential requirements for judges. Acerbic can mean ‘critical’ and I would have thought that was a virtue and not a vice.
Judges need to be assertive, more particularly in criminal matters where they have to deal with serious crimes. Most judges are courteous and respect advocates for the work they do. No judge should be nasty or become personal. As advocate Gauntlett SC has been a judge in other divisions in Southern Africa for many years without any complaints whatsoever it would not be unreasonable to challenge the reasons provided by the JSC for overlooking him again.
Using Google the following was found and is very interesting because there is no mention of ‘temperament’ which is word having many different meanings such as nature, character, personality, disposition, temper, spirit, outlook, makeup and humour.
ii. The Judicial Role: Myths and Realities
The late Chief Justice Bora Laskin listed a number of qualities which he felt were essential to being a good judge – character; integrity; honesty; industry; life experience, which can include politics; flexibility of mind; knowledge of the law; willingness to listen – but indicated that not all were easily ascertainable in advance, and some “must be taken on expectancy.” (6)
An empirical study of Alberta judges conducted by P. McCormick and I. Greene shows that knowledge of the law was not at the top of the list of desirable qualities identified by the judges themselves. McCormick and Greene asked judges, from the Provincial Court to the Court of Appeal, what characteristics they thought made good judges. The top seven most mentioned qualities in order of frequency were as follows:
1. industry, diligence (21)
2. courtesy (13)
3. empathy (13)
4. patience (12)
5. knowledge of the law (11)
6. intelligence (10)
7. sense of fair play (10) (7)
“These judges esteemed humanity, patience and courtesy at roughly the same level as knowledge of the law or intelligence. Equally interesting were some of the qualities that were mentioned only once or twice: independence and objectivity. It is ironic to note that text writers and judicial councils tell us this is the very essence of being a judge. This clashes with the judicial self-assessment of the qualities required for good judging. Yet the traditional version of the judge continues to dominate the public’s perception. It is necessary to expose these myths if express codes of conduct are to be accepted.
One of the burdens of being a judge is that one is expected to rise above mere mortal status and dispense justice with an objectivity that borders on the divine. Independent from the pressures of everyday life and free of political influences, the judge is to resolve difficult legal disputes with the wisdom of a Solomon. This is the idealized version of the judge and is at best something to aspire to. It tends to obscure the human dimensions of the practical task of judging.”
An editorial Silver lining in JSC’s decision was first published in Business Day today and the following random extracts appear courtesy of Business Day but you need to read the complete editorial.
“MANY in the legal fraternity and civil society will be hugely disappointed that senior counsel Jeremy Gauntlett was overlooked for a position on the Western Cape bench, especially as the reasons furnished by the Judicial Service Commission (JSC) are less than satisfactory.
However, the fact that the JSC has for the first time had to explain its thinking provides a silver lining. Making it more transparent goes some way towards restoring some of its lost legitimacy.
A landmark judgment of the Supreme Court of Appeal meant that Chief Justice Mogoeng Mogoeng had to explain the JSC’s decision. This followed a request by the former deputy president of the Supreme Court of Appeal, Louis Harms, for an explanation why attorney Mokgoatji Dolamo was recommended for the position and not Mr Gauntlett. It is understood that Judge Harms requested the explanation with a view to launching a legal challenge to the decision.
The JSC acknowledged Mr Gauntlett’s excellence and experience as a lawyer, but raised concerns about his temperament, in particular his alleged lack of humility and tendency to be acerbic. It also added that the demographic composition of the Western Cape High Court, which comprises 39% white men, was influential in its decision. Mr Dolamo was cited as being popular with fellow judges and a member in good standing with the law society, although he has been the subject of disciplinary complaints.
This is also not the first time Mr Gauntlett has been overlooked — in fact, it has now happened four times, which raises the question of whether the pursuit of judicial excellence in SA is being superseded by transformation goals. It is hard to believe that other white candidates who have been recommended by the JSC during the past four selection proceedings were better judicial prospects than Mr Gauntlett.”