Opinionista Gushwell Brooks 11 April 2013

To Cheeky and the Chief Justice: It’s all about merit

In the hallways of government, around office water coolers, on our sports fields – in every aspect of our lives, in fact – there persists the view that race and competence still fail to coalesce. And Chief Justice Mogoeng Mogoeng’s concession that, 20 years on from the Interim Constitution, the best people are not necessarily getting Judicial Service Commission jobs, not only echoes that view, it is an indictment on the JSC’s transformation programme.

“Merit does count, but it is not all about merit. Transformation is just as important,” Chief Justice Mogoeng Mogoeng has been reported as saying on the issue of transformation and the alleged snubbing of white, male judicial candidates.

As is the case for the rest of broader South African society, transformation is at the top of the agenda at the Judicial Service Commission. It is important for all structures within South Africa; the state, enterprise and society to reflect the populace that inhabits the country. Our past has distorted this possibility as race determined your class and acted as a brake on aspiration. Real, practical democracy is premised on changing this imbalanced past with the view to capacitating previously disadvantaged people to become doctors, lawyers, rugby players and whatever else the mind could imagine.

On the issue of rugby, a wonderful analogy for almost anything South African, one can’t help but think of the curious case of the Southern Kings. Let me nail my biased colours to the mast from the onset, to quell all aspersions about my prejudice. I am a Gauteng Lions fan and I can’t obfuscate the fact that I was quite ticked off when my team was relegated from the SuperRugby tournament to be replaced by said Southern Kings.

The Southern Kings’ pitch was that they would be the ultimate transformation team, taking players from the Eastern Cape rather than having them join other franchises, where they become perennial benchwarmers. The Kings would field a concentrated black team that could compete and compete competently. Unlike aforementioned team of mine.

Being a rugby fan with grandiose aspirations of masterfully practicing the art of rationalism, I sat back, set my beef with Cheeky Watson and his son’s desire to start their own Eastern Province dynasty aside and I now enjoy the fact that the Kings are actually kicking some arse.

In all honesty, rhetoric aside, nothing sets the Kings aside from the Bulls, Cheetahs or my beloved Lions. Their team still reinforces the age- old adage, “Rugby is a white thing.” So how does this frivolous sports analogy relate to the JSC?

Like the Watsons and their “supposed” desire to turn rugby into a truly representative sport, the question is how much has been achieved in the last 20 years? Why does there seem to be an on-going assertion that race and competence still fail to coalesce?

Cheeky and gang would have you believe that the majority white players in the Kings and the need for foreign conscripts is due the fact that their development players are not quite ready to play in the international arena that is SuperRugby. So to keep current sponsors and survive to fight yet another season, they have to resort to the necessary evil of placing competence rather than transformation on the field. Surely, their case that they needed a place at the franchise table has taken a serious hit particularly since they are fielding a mostly lilywhite team, leaving detractors to ask: “Where are these wonderful black players of yours?”

If their interest was the transformation of the sport, particularly transformation without a slide on competence, than Cheeky and gang needed to start building capacity as soon as the desire to field a transformation team struck them, before entering the competition. The same applies to the JSC. What about black attorneys that managed to gain an education and fight Apartheid in the courtrooms, surely some of them could be among our best judicial candidates today? When that Interim Constitution was signed by one FW De Klerk, could we not then already have started creating a pathway for future, overwhelmingly competent black judges?

More seriously than rugby, what the Judicial Service Commission needs to ask itself and give us an answer on is: Why is it that 20 years after our Interim Constitution, the JSC cannot simply say that black judges are being appointed on the basis that they are the most competent people to do the job? Asked differently: Has the JSC done enough to build capacity among black judicial candidates?

The answer to that question is a very empathic and obvious, NO! The answer to that question comes from none other than Mogoeng Mogoeng himself. By admitting that merit is not the most important consideration when appointing judicial officers and that transformation is just as important, the Chief Justice, consciously or unintentionally, concedes that the best people are not necessarily getting the job.

It’s not just a PR bungle or gaffe by the judge; it is a disaster for justice. I have debated with American law students the merits of the South African, all-powerful judge. They were much older and experienced as Americans first need to complete a bachelor’s degree before pursuing further study via law school. They raised their objections to one fallible person making life- changing decisions that affect the lives of individuals, corporations and entire communities irrevocably. But I held my own, arguing convincingly that that individual is the best the law profession has produced, a demi-god of unimpassioned legal aptitude.

The strength of my argument has taken a nosedive in light of Mogoeng’s justification, a decade later. This is not my gripe though; what leaves me seething is that we are not in a position to confidently state that black judges are appointed on merit. The JSC should have put in place a plan for any black legal practitioner to be upskilled to the extent that when they receive their nomination as a judicial officer, they pass on the basis of being “fit and proper persons” and that they are “appropriately qualified persons”, period.

There is an on-going, unspoken – much rather – mumbled perception that blackness equals incompetence. Whether we look to the hallways of government or the water coolers in offices, there still persists a culture that every black, equity appointment is to fill quota numbers and score EE points for tax relief. The JSC has reinforced the heinous stereotype and it, as custodian of Constitutional realisation, has failed its founding document miserably.

Assuming Mogoeng’s justification is factual, who committed the greater evil here? Cheeky, by lying to rugby fans and leading us to believe that he had a pool of black Jonah Lomus, ready to take the SuperRugby trophy, or the JSC for telling us that racial representation should be of equal gravitas to competence when appointing judges?

Well, rugby leaves a bunch of disgruntled supporters with no need to switch on their TVs on Saturday afternoons, whereas the JSC leaves considerable doubt on the strength of what should be a flawless legal system. One sincere request though, for goodness sake could we please not have the injustice of the Chief Justice quoting Madiba out of context? When Madiba said that he felt like a black man in a white man’s court, he surely envisioned that the society he fought for, in which he would be an equal to all despite race, gender or sexual orientation, would at some point be racially representative on the basis of merit, not a forced distortion.

What faith can I have in a judge if the Chief Justice sets competence aside and equates it to representation? DM

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