There are three observations that can be made, attention to which might result in a better process, if not necessarily better outcomes.
The first issue is the composition of the JSC. It is made up, in the majority, of men.
The entire JSC is comprised of 23 representatives from different structures and at the time of our research had five women sitting on it, the Deputy Minister of Home Affairs, a representative from the Black Lawyers Association, two representatives of the NCOP and one Academic. There has been one woman representative from the General Council of the Bar in the entire time of the existence of the JSC.
There are many people who will ask what the relevance of this is. Surely, it does not matter who the people are who make the decisions? In fact, it matters a great deal. People perceive merit more easily in those people who are like them. If someone talks like you, looks like you, and has a similar history to you, the likelihood increases that you will perceive why and how that candidate has merit.
In other sectors, section committees are deliberately made up of diverse people, so that a candidate’s case for appointment to a position can be appreciated and properly assessed by the group.
So the constituent parts of the JSC need to think about whom they put forward to the JSC, and make sure that they consider diversity as well as people who will represent their views. The General Council of the Bar had a chance to do so after Izak Smuts resigned. Sadly, another white male has replaced him, which doesn’t change the demographics of the JSC at all and still ensures a paltry number of women sitting on the JSC.
The second issue which needs to be considered is the process the JSC follows. In order for candidates to be appointable to the bench, it has become the practice to require acting experience. This is despite the fact that acting experience was not listed as one of the criteria for appointment by the JSC in 2010. However, if we accept that it is an advantage to have been an acting judge in this process, the question arises as to how you get that advantage.
Well, the answer to that is that we don’t really know. We do know only 19% of the acting judges are women, which is low given the pool of candidates in the magistracy, the academy, the bar, and the side bar.
How could this be improved? Without this process being transparent, it is difficult to say. Now, say to any judge president who presides over a province that they have to advertise and appoint acting judges in a transparent way would probably invite three responses. Firstly, that it is too time consuming. Secondly, that it is too expensive. And thirdly, that it is just too difficult.
So, too time consuming. Certainly, it will take more time than a chat in a corridor to see if counsel is available. However, it is fairer, and brings to the Judges President’s attention candidates that they normally don’t engage with.
Since the bar is mostly made up of men, to look mostly to the bar is not a way to have a pool of good women candidates. Women tend to be attorneys, magistrates and academics. If more qualified women have the opportunity to act as judges, we may see more women appointments. If the process can be more proactive, then candidates can be appointed to a panel, which are then given acting appointments as they become available.
Too expensive? In the days of social media, and email? The click of a button is all that is needed to spread the request for applicants far and wide.
Too hard? Well that is a point. Judges are not managers, they are lawyers skilled in the law. They have no background in HR, except as litigators. Most CEOs have an entire department, if not at least a dedicated specialist, to assist them in this area. It does seem odd that judges should be expected to do this without any specialist support.
Lastly, it is also tradition to appoint most judges from the advocate’s profession and while that has its advantages, it does exclude a large pool of qualified women. Currently, only 26% of advocates in the country are female, with only 6% of the Senior Council’s being women. Hence an approach that focuses on advocates and excludes academics, attorneys and magistrates will only exacerbate the problem further.
But to what point is this all? Why is it important to appoint women? Why don’t we just appoint competent people, kant en klaar? That is a whole other discussion – but we have to at least make sure that competence is not disadvantaged by its context, and that we look at all candidates through the lens of a fair process. These are skills we can’t afford to overlook in our ongoing work to build a truly constitutional state and obedience to the rule of law. DM
Tabeth Masengu is currently a Research officer at DGRU. She is an admitted attorney of the High Court of South Africa and holds an LLB from Rhodes University.
Alison Tilley is head of Advocacy at the Open Democracy Advice Centre. She is also an attorney.
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