First published by Judges Matter

Section 174 (2) of the Constitution of South Africa, which may be referred to as the “transformation clause” stipulates that the need for the judiciary to “reflect broadly the racial and gender composition of South Africa must be considered” when judges are appointed. The contentious nature of the provision was captured in a question that President Maya put to one candidate during the April 2018 JSC interviews:

“The simple question is how do we transform the SCA without weakening its intellectual capacity? Because that is my conundrum and that is the challenge of this body as well, I am sure.”

Section 174 (2) of the Constitution is a call to transform the judiciary by making sure that judicial appointments result in equitable racial and gender representation in the judiciary, without compromising the other constitutional imperatives such as merit, the need to maintain judicial independence and impartiality, as well as the need to ensure that judicial selection processes are fair. Over the years, the Judicial Service Commission (JSC) has been pre-occupied with that mission. This is evident in the fact that during the JSC interviews, candidates have frequently had to respond to questions on judicial transformation. This is a noble exercise by the JSC. But the challenge is that the JSC is not systematic in the manner in which it poses questions on transformation to candidates.

This is evident in that certain candidates are “drilled” on transformation while others are only probed by a single light question, or they are not asked questions at all on that subject. Such uneven questioning of candidates by the JSC was apparent in the April 2018 interviews. A case in point is the uneven questioning of Ms Hadebe and Ms Law, who were vying for the same position of a judge in the KwaZulu Natal (KZN) division of the High Court and were interviewed by the same panel of the JSC.  Ms Hadebe, a black female candidate, only had to answer one question on transformation, namely:

“….Ms Hadebe I have got one question to ask. The issue of transformation of the Judiciary is a challenge. It remains a reality that black Africans, more especially women are still under-represented on the Bench and the situation had not improved in the post-1994 era taken into consideration the demographics in KwaZulu-Natal. What is going to be your contribution in trying to remedy the imbalance, taking into consideration Section 174(2) of our Constitution and in your own words you just heard your story is a story of hope, we hope you will contribute to change the situation.”

Ms Law, a white female candidate was subjected to a long list of questions on transformation which are as follows:

[1] “Can you elaborate on the contribution you can make in transforming the judiciary? In ensuring that there is fair representation of black Africans and women in particular on the Bench considering the demographics and Section 174(2) of the Constitution?”

[2] “Can you share with us your understanding about the rate of transformation of the judiciary in our country?”

[3] “What I would like to find out from you is what has been your contribution towards the transformation of the profession?”

[4] I am just trying to understand…Whether it is a systemic issue where you can only be approached, or does it take a situation of – in other words, I am trying to understand whether you are a transformation agent inherent in yourself or whether transformation is not quite part of what your orientation is at.

[5] Okay, right. Now the second issue is to do, you know, this transformation thing has got to do with the numbers and all the cosmetic stuff. But more seriously it has to with softer issues such as empathy, which I described as the ability to put yourself into somebody else’s shoes. Having gone through the experiences that you went through in the UK, and I appreciate what you say it was the first time you experienced it. Maybe it was the first time you experienced it as a person but surely being South African you had seen other people being degraded and assumed just because of the biological appearances to be incompetent, stupid, inferior or lazy. Did you, coming back from that experience, not find it necessary to yourself make sure that other people in the profession are not put in that position?

Thus, Ms Law had to respond to what she has done so far in terms of contributing towards transformation, give her assessment of the rate of transformation of the judiciary in the country and demonstrate whether she is “a transformation agent…or whether transformation is not quite part of what [her] orientation”.  On the other hand, Ms Hadebe was only asked to outline her future plans on how she intends to contribute towards transformation, if she were appointed.

Another case in point is that of Advocate Topping and Mr Mngadi, two male candidates who were vying for the same position in the KZN High Court division. Advocate Topping, a white male candidate was asked the following questions on transformation:

[1] What role if any have you played in transformation at the Bar and in terms of bringing in black juniors into your matters?

[2]…. But would you be prepared to step back and allow for a person of a different racial (sic) to be appointed?

Mr Mngadi, a black male candidate was only asked the following question:

“What has been your direct contribution in assisting to transform the Judiciary over the years in your long service at the legal profession, taking into consideration Section 174 (2) of the Constitution and looking at the demographics of the KZN High Court Bench?

Both candidates were asked to provide an evaluation of their contribution thus far towards transformation, but Advocate Topping had to respond to whether he would be prepared to step back and allow a person of a different race to be appointed. To be fair, a similar question could also be asked to Mr Mngadi to establish is he was prepared to let a woman be appointed in his place given that transformation is not just about bringing more blacks on the bench but also females.

The uneven treatment is also manifest in that at times other candidates are not asked questions on transformation while others are asked to respond to various questions on this subject. A case in point is that of Judge Tsoka and Judge Mbatha, who were not asked questions on transformation, yet their competitors for SCA positions were asked a barrage of questions on transformation.

This kind of uneven questioning is problematic because it means the candidates are not being treated equally, as some are spared questions which others are required to respond to. Views on such an important constitutional issue as transformation should be solicited from every candidate who appears before the JSC, regardless of their race or gender. In order to identify a suitable candidate the JSC should probe each candidate to give their views on issues such as their interpretation of the idea of judicial transformation, their contribution towards transformation, and what they will do to promote transformation if appointed. While as these questions are relevant to white candidates, they are also relevant to black candidates.

It is critical that the JSC views black candidates as not only victims of marginalisation, but also as agents of transformation. For instance, in the case of Ms Hadebe and Ms Law, similar questions could also have been probed with Ms Hadebe to evaluate if she had done the best within her influence and power to promote the transformation agenda in her previous roles. Creating a transformed judiciary does not mean compromising on the principle of fairness. By sparing some candidates questions on transformation or asking light questions on this subject, the JSC may be creating a public impression that the interviews are not impartial, since candidates are not being “grilled with equal measure” on questions regarding the transformation of the judiciary. This impression has the potential of diminishing public confidence in the independence of the judiciary. It may also lead to some good potential candidates shunning the interviews as they are unsure that they would be treated fairly and equally. Thus, while the JSC should be given credit for pushing the transformation agenda, it could do better by adopting a systematic approach to questioning, especially on the issue of transformation, in order to ensure that candidates are treated fairly and equally regardless of their gender and race. DM

Dr Justice Mavedzenge has a PhD in Constitutional Law and an LLM in Constitutional & Admin Law from the University of Cape Town. He is currently a researcher for the Democratic Governance and Rights Unit at the University of Cape Town