Judicial Service Commission: White Men Can't Judge

Judicial Service Commission: White Men Can't Judge



News 24 & City Press | 07 April 2013

A commissioner of the Judicial Service Commission (JSC) will ­tomorrow advise his employer to “come clean” and tell white male candidates that they needn’t ­bother applying to become judges.

And, in what may be seen as a startling indictment of the JSC, it has also been warned to guard “most strenuously” against the “pursuit of a covert political ­agenda under the guise of an ­alleged constitutional imperative (of transformation)”.

These statements are contained in a discussion document that commissioner Izak Smuts is due to present at a closed meeting of the commission tomorrow, ahead of a week of interviews in Cape Town.

In the document, which City Press has seen, Smuts says: “One way or the other, the JSC must deal with the uncomfortable perception that the graffiti on its wall reads ‘white men can’t judge’.”

He argues that “the JSC ought to have an honest debate about its ­approach to the appointment of white male candidates.

“If the majority view is that . . . white male candidates are only to be considered for appointment in exceptional circumstances, the JSC should, at the very least, come clean and say so, so that white male candidates are not put through the charade of an interview before ­being rejected.”

Smuts, a practising advocate and senior counsel, is something of a crusader in the legal profession. He recently quit his position as deputy chair of the General Council of the Bar over the ­council’s position on the Legal Practice Bill.

‘White men can’t judge’

Charl du Plessis | City Press | 7 April 2013 10:00

One of Judicial Service Commission’s own says its time to admit male candidates have no chance.

A commissioner of the Judicial Service Commission (JSC) will ­tomorrow advise his employer to “come clean” and tell white male candidates that they needn’t ­bother applying to become judges.

And, in what may be seen as a startling indictment of the JSC, it has also been warned to guard “most strenuously” against the “pursuit of a covert political ­agenda under the guise of an ­alleged constitutional imperative (of transformation)”.

These statements are contained in a discussion document that commissioner Izak Smuts is due to present at a closed meeting of the commission tomorrow, ahead of a week of interviews in Cape Town.

In the document, which City Press has seen, Smuts says: “One way or the other, the JSC must deal with the uncomfortable perception that the graffiti on its wall reads ‘white men can’t judge’.”

He argues that “the JSC ought to have an honest debate about its ­approach to the appointment of white male candidates.

“If the majority view is that . . . white male candidates are only to be considered for appointment in exceptional circumstances, the JSC should, at the very least, come clean and say so, so that white male candidates are not put through the charade of an interview before ­being rejected.”

Smuts, a practising advocate and senior counsel, is something of a crusader in the legal profession. He recently quit his position as deputy chair of the General Council of the Bar over the ­council’s position on the Legal Practice Bill.

His comments come against the backdrop of increasing criticism and questions around the JSC’s ­appointment of candidates.

In April 2011, the JSC decided to leave open two spots on the Western Cape High Court’s Bench, despite the fact that there were four white senior counsel available.

The Supreme Court of Appeal (SCA) would eventually declare this decision irrational.

In the case, the JSC argued it could not be expected to give ­reasons for non-appointment of candidates because its members voted by secret ballot.

But the SCA ruling went against this view.

Startlingly, the JSC then elected not to change its voting procedures, causing some in legal circles to question how a body could give reasons for a decision taken by a secret ballot.

When lawyer Jeremy Gauntlett applied for a position on the Western Cape High Court Bench in the October round of interviews last year, the JSC faced court action because he had not been appointed.

When compelled to give reasons, the JSC said it did not believe Gauntlett, one of the most highly regarded advocates in the country, had the necessary judicial temperament.

He was again passed over.

Newly retired Constitutional Court Justice Zak Yacoob also ­recently criticised the JSC when he said he “doubted” the Constitution ever envisioned a process where JSC members would vote by closed ballot.

He argued that a comprehensive set of guidelines should be put in place.

In his discussion paper, Smuts also raises the spectre of a “covert political agenda” by the JSC.

In April last year, Advocate Wim Trengove told the Mail&Guardian there was an impression “the political component of the ANC (on the JSC) wields far greater influence than in the first five years”.

Smuts will tomorrow tell the JSC the word ‘transformation’ appears in no statutory provision relating to the JSC, including the ­Constitution.

The Constitution only provides for the “need for the judiciary to ­reflect broadly the racial and gender composition of South Africa”, Smuts argues in his submission.


Focus on women

Gender transformation will be at the top of the agenda for the Judicial Service Commission (JSC) when it meets this week to fill 11 vacancies in the country’s superior courts.

Gender transformation of the judiciary in South Africa has not only ground to a halt, it is actually going backwards.

According to government statistics, it appears the JSC has kept the pedal down on racial transformation, but has sidelined gender transformation.

In March 2011, the number of African judges (98) for the first time surpassed that of white judges (90). In fact, the number of white judges has shrunk by 30% when compared with 2005.

In that year, 30% of judges were women, which this year dropped to just 28%.

In this round of interviews, 14 of the 23 potential candidates are women.

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JSC in talks on transformation

2013-04-08 14:41 | News 24

Cape Town - The Judicial Service Commission (JSC) was on Monday discussing a call by one of its members to "come clean" on the appointment of white men as judges.

"We are still discussing the... issue that was leaked to the media, but on its merits," JSC spokesperson Dumisa Ntsebeza said in a text message by lunch time.

The commission gathered in Cape Town on Monday for a five-day meeting.

The issue referred to is a discussion paper - titled "Transformation and the Judicial Service Commission" - prepared by practising advocate and senior counsel Izak Smuts for presentation to the JSC.

In it, he reportedly says there exists "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".

He proposed that the JSC has "an honest debate" about its approach to the appointment of white male candidates.

"If the majority view is that... white male candidates are only to be considered for appointment in exceptional circumstances [an approach I consider to be unlawful and unconstitutional], the JSC should at the very least come clean and say so."

Smuts contended this would prevent white male candidates being "put through the charade of an interview before being rejected".

The JSC is meeting in Cape Town to interview 23 short-listed candidates for 11 open judicial positions. The meeting ends on Friday.

The short-list was decided in February this year.

There was a furore at that time over the JSC's rejection of Cape Town advocate Jeremy Gauntlett for appointment as a Constitutional Court judge.

It was the fifth time Gauntlett was turned down for judicial appointment.

Contacted for comment on Monday, African Christian Democratic Party (ACDP) MP Steve Swart, a long-standing member of Parliament's justice and constitutional development portfolio committee, said there was merit in what Smuts was suggesting.

"We (the ACDP) definitely support what he has called for."

Swart also referred to the controversy over the JSC's rejection of Gauntlett.

"It was totally unacceptable he was overlooked," he said.

There was definitely a problem with the way the JSC selected candidates, "particularly white candidates".

Swart said his party was concerned about the way eminent candidates were overlooked by the JSC, and suggested there was a "very strong political agenda" at play.

Appointing white males

Congress of the People (Cope) MP and justice spokesperson, Luzelle Adams, said she doubted the JSC would come out and say it would not be appointing white, male judges.

"I doubt they will say that."

Noting that the appointment process was by secret ballot, she said race should not be an issue when it came to appointing judges.

"Race should be out of the issue; we should be looking at the quality of the candidates going to the Bench," Adams said.

The justice ministry was not immediately available for comment on the issue.

However, Justice Minister Jeff Radebe, speaking during debate on his budget vote in Parliament in May last year, denied there were political agendas pursued by some JSC members.

"There are views... that the JSC tends to overlook quality and competence and that its decisions are influenced by political agendas.

"These sentiments are devoid of any truth and tend to undermine the integrity of the JSC's esteemed members...," he said at the time.

The DA and IFP justice spokespersons were not immediately available for comment.

In October last year, Chief Justice Mogoeng Mogoeng said that the transformation of the judiciary was an ongoing "juggling act" between meeting constitutional objectives and appointing people who can carry out judicial functions effectively.

"Transformation is no longer about appointing black people and women to the judiciary - there are added factors," Mogoeng said at the time.

A few months earlier, in August, the Black Lawyers' Association (BLA) said a shortlist of candidate judges drawn up by the JSC was "worrisome" as it did not reflect the "demographics" of South Africa.

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JSC's Izak Smuts resigns after transformation row

12 April 2013 | Niren Tolsi | Mail & Guardian

Judicial Service Commission member Izak Smuts has resigned after a week of controversy over a his leaked report on transformation.

Smuts, a representative of the advocates profession on the commission, was appointed in 2009 and in a statement to the media said that he had found the commission's track record during that time "disturbing".

The Mail & Guardian understands that he was given a "torrid" ride at Monday's closed sitting of the commission when a document that he had penned for internal circulation – but which had been leaked to the media – was discussed. In the report, Smuts had stated that the commission had a bias against appointing white male candidates and that it only did so in "exceptional circumstances".

The report appeared to set the cat among the pigeons at the commission.

Chief Justice Mogoeng Mogoeng had described Monday's meeting as "robust".

Yet, in what appears a final swipe at the commission and its internal processes, Smuts, in his statement, said: "It has become increasingly apparent to me, and has been made devastatingly clear during the proceedings of the commission this past week, that my understanding of the constitutional values, the constitutional role and duty of the commission, and even of the basic rights such as those of human dignity and freedom of speech, is so far removed from the understanding of the majority of the commission that it is not possible for me to play an effective role on the commission. The time has come for someone else to try and succeed where I have spectacularly failed."

Smuts said he had on "numerous occasions been in despair at the outcome of the [commission's] deliberations" and that it had, during his time on it "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 as scarce.

He named several white males as "examples of intellectual forensic excellence" who had been overlooked by the commission, including advocates Geoff Budlender, Jeremy Gauntlett who has been overlooked for both the Western Cape High Court and the Constitutional Court, and advocate Torquil Paterson who had, famously, told the commission during his 2009 interview for a place on the Eastern Cape High Court that "there is no God".


'Deeply concerning'

Smuts also mentioned current Supreme Court of Appeal Court judge Azhar Cacahlia, who is considered struggle royalty and who, in 2009, had demonstrated a strong will and independent-mindedness during his interview for a Constitutional Court position, and advocate Willem van der Linde, who had admitted to being a member of the Broederbond at a young age. The commission has previously appointed former Broederbond members to the bench.

Smuts said these candidates were examples of "intellectual forensic excellence, steeped in the values of the Constitution" and that their rejection by the commission "illustrate something deeply concerning about the commission's approach to the intellectual leadership of our legal community. The approach has resulted in a massive loss to our courts of the opportunity to utilize optimally the finest intellectual prowess.

Smuts, who earlier this year resigned as deputy chairperson of the General Council of the Bar in protest against its stance on the Legal Practise Bill was also critical of the litigation the commission has pursued in recent years.

"The commission has repeatedly been involved in litigation regarding the manner in which the majority on the commission has directed its affairs. None of the litigation has ultimately met with success. The image of the commission has been tarnished in consequence," stated Smuts.

In the past four years the Supreme Court of Appeal ruled that a commission decision not to fill two out of three vacancies on the Western Cape bench to be "irrational", among other judgments against the commission.

Commission spokesperson, advocate Dumisa Ntsebeza said the body had been notified of Smuts resignation on Friday and said it was "the correct thing to do" if Smuts "found that he was really unable to be a part of this body".

"We have accepted his resignation," said Ntsebeza noting that it appeared Smuts had had "time to reflect on it".

The commission also announced on Friday that it had not recommended any of the five candidates it had interviewed for a position on the Eastern Cape High Court bench.


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