The advancement of women in the judiciary would be best served by introducing a set of uniform, clear criteria for appointing acting judges, write professors Managay Reddi and Karthi Govender.
Durban - A recent conference of women judges and magistrates, held under the banner of the South African Chapter of the International Association of Women Judges, debated a number of issues of relevance to women in South Africa. The transformation of the judiciary featured strongly in the debates.
The process of the transformation of the judiciary began almost two decades ago with the advent of democracy in South Africa. At the time, it was realised that the composition of every organ of government – including the predominantly white, male-dominated judiciary – needed to be reflective of the demography of the country.
The process of transforming the judiciary began in the apex court of the land, which adopted the principle that the Constitutional Court must be representative, and that previous patterns of appointment had to be jettisoned in favour of a more inclusive process that resulted in the appointment of appropriately qualified, fit and proper persons.
Previous judicial experience was not a prerequisite. The jurisprudence of outstanding jurists such as Kate O’Regan and Yvonne Mokgoro, who were responsible for some of the most seminal judgments of the Constitutional Court, would have been lost to South Africa and the world had this principle not been followed at the time.
Eighteen years down the line, a somewhat different picture has emerged. The current practice is that anyone who has not presided in a high court cannot be appointed to the Constitutional Court. Likewise, anyone who has not acted as a judge in the high court, Labour Appeal Court or Supreme Court of Appeal will not be eligible for a permanent appointment to these respective courts. Thus, an acting stint operates as the gatekeeper to becoming a judge of the high court and, subsequently, to being appointed to any of the higher courts in the country.
Given the indelible connection of acting appointments to the permanent appointment of judges, it is inevitable that there should be a focus on the procedures involved in the appointment of judges.
The practice of requiring a candidate to have acted as a judge before seeking a permanent appointment serves the function of determining the suitability of the candidate for the position, in addition to providing the candidate with an opportunity to test whether the job suits him or her.
An acting judge is entrusted with the same responsibilities and functions as a permanent appointee. This involves discharging the responsibility of determining the case before the court and, in the process, creating a coherent and competent jurisprudence in the interpretation and application of the law. This is neither an easy task nor one that can be performed by anyone with a legal qualification and some experience. It is therefore imperative that acting judges meet a minimum standard given the responsibilities they are expected to perform.
The constitution does not provide any specific guidelines on the procedures to be adopted in making acting appointments, and confers a wide discretion to the judge presidents on the criteria to be used when making such appointments.
Some delegates at the conference expressed the view that too much discretion vests in the judge presidents with regard to the appointment of acting judges, and that this discretion should be structured in a meaningful way to achieve the objectives of a competent, effective and representative judiciary.
The practice in KwaZulu-Natal reflects an awareness of the benefits of a more inclusive and representative selection procedure, and serves as a useful precedent for emulation by other judge presidents.
In KwaZulu-Natal, the various professional organisations representing attorneys, advocates and magistrates are required to submit the names and CVs of suitable candidates for appointment as acting judges to a selection committee comprising the judge president and other senior members of his court.
No acting appointment is made at the sole discretion of the judge president.
A set of uniform criteria to be used across South Africa when selecting candidates to act as judges would go far in counteracting the perception that men are preferred over women for acting appointments and that the “old boys’ club” still holds sway in these appointments.
The Bangalore Principles – which identify judicial independence, impartiality, integrity, propriety, equality, competence and diligence as the minimum standard for an independent and effective judge – read together with our constitutional imperative of having a representative judiciary – can easily form the basis of the set of criteria that should be developed for the appointment of acting judges.
In crafting the criteria, it is submitted that the following should form the minimum requirements for appointment.
The applicant must be a fit and proper person with no questions about his or her integrity; must have occupied a position involving the practice or application of law, either as an advocate, attorney, academic, or regional magistrate, for at least 10 years; must demonstrate an appropriate and adequate knowledge of and ability to access the law and apply it to factual scenarios and reach conclusions; and must have a proven ability to conduct in-depth legal research and write coherently, logically and persuasively. Other factors such as courtesy to counsel, the ability to listen patiently to arguments and to reflect on issues in a dispassionate and disciplined manner will also be relevant.
Having a set of minimum criteria will also ensure that applicants who are not appointed to acting positions will have to accept that they have not made the grade.
However, in line with fair administrative action, the selection committee making the decision should be frank in providing the reasons for not making the appointment. Not only will this foster transparency, but it will also serve an educative function in informing applicants of their shortcomings.
No doubt, the practice of constituting a selection committee that has to use predetermined minimum criteria in the selection process, and that will have to provide reasons for not making appointments, will create an additional administrative burden. However, this is justified given the groundswell of concern about the present process and the likelihood of a legal challenge by an unsuccessful candidate.
Given the Supreme Court of Appeal’s recent ruling that the JSC must give reasons for not appointing qualified candidates, and in the process leaving a post in the Western Cape High Court vacant, a judge president not appointing an applicant to an acting position may well be required to demonstrate that he or she acted rationally, and to provide reasons for his or her decision.
It is the responsibility of judge presidents and their committees to ensure that the acting appointees they select are appropriately qualified and are able, during the tenure of their appointments, to be a positive reflection on the judiciary in general. It is not the responsibility of the judge presidents to ensure that aspirant appointees meet the stipulated criteria for appointment. That responsibility rests with the candidates themselves and with the South African Judicial Training Institute in particular and the state in general.
* Reddi is the dean and head of the School of Law at UKZN. Govender is a professor of law at UKZN.
** The views expressed here are not necessarily those of Independent Newspapers.