JSC rescues SA judiciary’s reputation with Mbenenge ruling, but stumbles over identity politics

The performance of the Judicial Service Commission (JSC) has been controversial since the retirement of Chief Justice Pius Langa as its chair. In recent times, under Chief Justice Mandisa Maya, there have been signs that the JSC is again, albeit slowly, performing as the drafters of the Constitution so intended.

In the latest round of hearings for appointment, the most important single decision was to, in effect, reverse the recommendation of the Judicial Conduct Tribunal under the chair of Judge President Bernard Ngoepe that found that the conduct of the Judge President of the Eastern Cape, Selby Mbenenge, amounted to no more than misconduct as opposed to gross misconduct.

Recall the very lengthy hearing in which the tribunal heard evidence about sexual harassment and misconduct on the part of the Judge President. It was of such a sustained nature that the recommendation made by the tribunal that this conduct did not amount to gross misconduct — which would subject the Judge President to impeachment — was greeted with understandable incredulity.

The published recommendations reveal that the tribunal had failed to grasp the extent to which the power relationship between a Judge President and a registrar at his court would play such a significant role in their relationship, nor the fact that repeated attempts by the Judge President to discuss or consider sexual relations were completely inappropriate. Only an old-world patriarchal view of society could have sustained the recommendations. Compounding Judge Mbenenge’s conduct was a startling absence of remorse.

It is, therefore, to the great credit of the JSC that it found that the record of evidence justified a finding of gross misconduct of a kind which is likely to involve the impeachment of the Judge President. By this action, the JSC rescued the reputation of the judiciary, sullied as it would have been had the tribunal’s recommendations been followed.

That this all occurred in the judiciary within the context of the egregious levels of sexual harassment and violence which occur in South Africa made the initial ruling all the more disturbing. The JSC has, by its clear action, rectified the perception that the judiciary is unaware of the context in which women find themselves in South African society.

Inconsistency

That was probably the high point of the week. One of the difficulties with the recommendations of the JSC is its inconsistency. On the one hand, it recommended the promotion of Judge Bashier Vally and Judge Leonie Windell to the Supreme Court of Appeal.

Both of these judges had applied for promotions on previous occasions and been turned down. One can only assume that the explanation is that far superior candidates applied at the same time and, therefore, Judges Vally and Windell were not appointed. But it does raise the question about the consideration of someone who had been previously rejected for elevation based on a question that might be phrased along the following lines: Have they so improved since the last hearing that the elevation is now justified?

Whatever the merits of these appointments — and doubtless there will be those who consider that they are wise decisions of the JSC — the further question arises as to the non-appointment of Judge Fiona Dippenaar to a post on the Competition Appeal Court.

She was the only applicant in this case, and therefore the inference must be that the JSC found her unsuitable for elevation to this court. That in itself is a troubling inference in that Judge Dippenaar is widely regarded as a very fine judge with considerable expertise in the area of commercial law, a field in which the judiciary is not particularly blessed at present.

What compounds the problem is that two lines of attack were launched by members of the JSC against Judge Dippenaar, both of which seem to be profoundly unfair to the candidate.

In the first place, there was a considerable debate about a principle of competition law which has been upheld on numerous occasions not only by the Competition Appeal Court but also by the Constitutional Court. Nevertheless, Judge Dippenaar was criticised for the existence of this rule, despite her having played no part in any of the judgments that have reaffirmed it.

To relitigate a case before the JSC, particularly in a case of a judge who has not written a judgment on this particular issue, is not only unfair but appears to run counter to what one understood to be the practice of the JSC, namely, that disgruntled counsel who had lost a case should not relitigate the case before applicants for judicial positions.

The second line of attack concerned the briefing patterns of the profession in respect of competition litigation. There can be little doubt that this practice is unfair because it is so untransformed. In short, white men still dominate this field of law and women and black counsel are very rarely briefed; hence, the complaint which was articulated at the JSC about this unacceptable state of affairs is entirely justified.

What is problematic, however, is to blame a judge for this practice, particularly a judge who is seeking elevation to this court and can in no way be blamed for this unfortunate state of affairs.

This unfair attack on Judge Dippenaar reflects the unfortunate practice that identity politics may still dominate the decision-making process of the JSC in certain instances and in circumstances where, to the great credit of the JSC, the South African judiciary is reasonably reflective of the demography of a country.

To deny an application such as that of Judge Dippenaar for reasons that are tendentious at best sends an unfortunate signal that talent and expertise are not sufficiently rated as important.

The upshot is that several sound appointments were made and that the hearings in general were conducted in a fair and reasoned fashion, apart from the case of Judge Dippenaar.

What is required is that the JSC be consistent in its decision-making process. The conclusion, however, is that this set of hearings and decisions by the JSC constitutes a small but important step towards an institution that can and must fulfil the aspiration of our constitutional drafters. DM