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Time for the JSC to lead again 


In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

There are significant numbers of appropriately skilled and experienced judges from all quarters of the demographic profile. They would add greatly to the stature of the apex court without in any way compromising on racial and gender transformation.

Supreme Court of Appeal (SCA) judge Azhar Cachalia recently spoke about the state of the judiciary and how it was affected by the decade of the Zuma presidency. Judge Cachalia came to the bench after a career as a human rights attorney and later a senior government official in the Mandela administration. Before that, he had been national treasurer of the United Democratic Front. He suffered a number of bouts of detention without trial at the hands of the apartheid security police. He thus speaks with a moral voice born of decades of commitment to a non-racial democracy.

It is important to sketch this background in the light of serious criticism that the judge recently offered of the judicial institution and the appointment process. Given his background, his comments should prompt a serious conversation. 

Among the points he made were the following:

“The SCA’s president was informed that she would not be able to appoint more than one white male. I make no comment on the qualities of the other candidates, but this policy is applied despite the fact that there is a skills deficit in our courts.

“I was recently asked to represent the SCA in the JSC to interview candidates for two positions on the Constitutional Court bench. The reason I participated was because the president of the SCA had to recuse herself for reasons that are not important. Some background first: a few years ago the Constitution was amended to give the Constitutional Court the jurisdiction over arguable points of law of general public importance. Until then it only had the jurisdiction to deal with constitutional disputes.

“The expanded jurisdiction meant that the Constitutional Court now had to deal with commercial law disputes, tax law, intellectual property law, competition law and the like. So I thought that I should test some of the candidate’s knowledge and experience in commercial law. And I did. Several of my co-commissioners did not appreciate my line of enquiry.”

The core of Judge Cachalia’s argument was that section 174 of the Constitution comprises two fundamental requirements: the appointment of appropriately qualified men and women and that the composition of the bench should reflect broadly the racial and gender composition of the country. The JSC sought to give practical effect to this dual provision, until the Zuma decade, when the demand for experience and technical competence was relegated in importance.

Judge Cachalia noted in his remarks that increasingly there has been both academic and professional criticism of the judiciary, particularly of the jurisprudence emanating from the Constitutional Court. This was certainly less the case in the first 15 years of the court’s existence. A small category of this relatively recent line of critique is the following important observations by academic and professional lawyers: 

  • Confusion in the area of private law (for example, prescription); 
  • Unjustified interventions in criminal law (for example, a troubling majority judgment regarding the application of the common purpose doctrine in Jacobs v S);
  • A string of cases where judgments (albeit often in the minority) have muddied the waters with respect to the so-called Oudekraal principle (whether legal consequences flow from an illegal administrative act);
  • The general approach to review as was evident in State Information Technology v Gijima Holdings;
  • The law of defamation arising out of the pupils’ parody of their deputy headmaster in Leroux v Dey and, most recently;
  • A judgment by the majority in Standard Bank v Competition Commission that seems to eschew the principles of transparency and accountability when a powerful body such as the Competition Commission is involved.

This evidence lends significant support to Judge Cachalia’s observations. The Constitutional Court is now not only a court that deals with constitutional issues. It is the apex court for all appeals, be they contract, tax, intellectual property, company law, or competition law. 

Manifestly, the question of different forms of appropriate experience and technical expertise is important in the appointment of judges to this court. It would be most unfortunate if this debate was conflated with arguments about the obvious need for radical demographic change to the judiciary inherited from apartheid. Judge Cachalia’s history alone shows that was clearly not his objective. 

However, bluntly put, almost 26 years into democracy has substantially changed the demography of the judiciary although, regrettably, the legal profession has hardly embraced the need to transform briefing patterns. The point is, however, that there are significant numbers of appropriately skilled and experienced judges around the country from all quarters of the demographic profile. They would add greatly to the stature of the apex court without in any way compromising on racial and gender transformation.

Over a decade ago, some 30 candidates applied for the four vacancies then on the court. Today, far fewer apply and this is a disturbing trend. Many who would add powerfully to the skill and expertise of the court appear to be determined not to apply. 

It is imperative that the Judicial Service Commission (JSC) gives meaningful content to appropriate experience and technical skill. It may wish to bear in mind that the norm which is still employed by all too many in the established profession should not without critique be equated with appropriate experience and skill. If the JSC so engaged, it would help answer the criticisms made by Judge Cachalia without compromising on the need to ensure that the apex court is staffed with a complement that broadly is representative of the country’s demography.

At the same time, it may serve to encourage a host of outstanding black and women lawyers to apply for judicial office instead of remaining in the private sector as very successful advocates and attorneys. Despite the obduracy of old briefing patterns, many of this cohort have exactly the kind of skills and experience needed to meet the arguments raised by Judge Cachalia. Is it too much to hope that we can engage in a meaningful debate about these questions and that the JSC can still lead the nation in this endeavour? DM


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