Cape Town - The resignation of Izak Smuts as a member of the Judicial Service Commission (JSC) has sent shockwaves through the legal fraternity, and led to calls for the commission to fully spell out its criteria for choosing judges, including the transformation of the judiciary.
Smuts, a lawyer from the Eastern Cape, lit the fuse on the powder keg that is transformation in the judiciary this week when a contentious discussion document entitled “Transformation and the Judicial Service Commission”, which he had prepared for the JSC, was leaked.
In the document he called on the JSC to stop “the charade” of interviewing white male candidates when there was no intention of appointing them because of transformation imperatives holding sway.
He charged that there was “a very real perception in certain quarters that the JSC is, in general, set against the appointment of white male candidates except in exceptional circumstances”.
And yesterday, Smuts went out guns blazing, saying he had “on numerous occasions been in despair at the outcome of (the JSC’s) deliberations”.
In a two-page statement, he said: “It has become increasingly apparent to me, and has been made devastatingly clear during the proceedings of the commission this past week, that my understanding of the constitutional values, the constitutional role and duty of the commission, and even of basic rights such as those of human dignity and freedom of speech, is so far removed from the understanding of the majority of the commission that it is not possible for me to play an effective role on the commission. The time has come for someone else to try and succeed where I have spectacularly failed.”
Smuts provided examples of white men who had not been appointed to the bench, including advocates Geoff Budlender and Jeremy Gauntlett, and also referred to this week’s interview of Eastern Cape High Court Judge Clive Plasket for a position on the Supreme Court of Appeal Bench.
“I raise these names to illustrate that there is something deeply concerning about the commission’s approach to the intellectual leadership of our legal community,” he said.
“That approach has resulted in a massive loss to our courts of the opportunity to utilise optimally the finest available intellectual prowess,” he said.
“In a country still seeking to establish a new value-based foundation for its continued existence, this waste of talent, experience and values is not rationally explicable.”
The JSC met in Cape Town this week to interview candidates to serve as high court judges on various benches around the country.
Smuts, in his resignation missive, also referred to previous litigation between the JSC and the Cape Bar Council (CBC) in which the Supreme Court of Appeal found that the JSC had acted “irrationally” in deciding not to fill vacancies on the Western Cape Bench.
“Regrettably, the track record of the commission during the time in which I have served on it has been disturbing. The commission has repeatedly been involved in litigation regarding the manner in which the majority on the commission has directed its affairs. None of that litigation has ultimately met with success. The image of the commission has been tarnished in consequence,” he said.
Referring to the rejection of several candidates interviewed in the past, Smuts added that the commission has “left a trail of wasted forensic talent in its wake which would be remarkable in a society rich in human resources, and is unintelligible in a society such as ours in which, for reasons of our discriminatory history, such resources are scarce”.
After Smuts announced his resignation, justice department spokesman Mthunzi Mhaga referred Weekend Argus to the JSC’s spokesman, advocate Dumisa Ntsebeza, for comment.
Ntsebeza described the resignation as “regrettable”.
Constitutional law expert Pierre de Vos said the commission needed to have a set of “clearly-enunciated criteria” which it applied consistently.
“It would be helpful if everyone knows where they stand,” he said.
Chris Oxtoby, a researcher at UCT’s Democratic Governance and Rights Unit – which monitors the JSC interviews – echoed De Vos’s views.
“There are obvious, vast and fundamental divisions within the JSC and its role and how it should be fulfilling its transformation mandate,” Oxtoby said.
He added that the whole point of having a commission was so that the system of appointing judges was open, transparent and accountable.
However, Oxtoby added that what the commission needed was, firstly, to articulate its approach to the transformation of the judiciary and, secondly, to ensure that there was greater consensus and shared understanding between commissioners.
“We need to find common ground,” Oxtoby explained.
Paul Hoffman, of the Institute for Accountability in Southern Africa, said the JSC’s current approach to transformation amounted to a “dumbing down of the judiciary”.
“You should be looking for the best of the best, and if you don’t it’s a recipe for disaster,” he said.
Hoffman suggested that what was needed was that the sections of the constitution, which the JSC applies when considering candidates for judicial vacancy, be properly interpreted by the Constitutional Court.
Political parties also weighed into the growing JSC furore with IFP chief whip Koos van der Merwe saying: “I think it’s very sad that we’ve lost him. He was a very competent commissioner and did excellent research.”
The DA’s representative on the JSC, Hendrik Schmidt, said: “It’s a pity to learn that he resigned. Izak Smuts spoke from a sense of authority and an informed point of view.”
Weekend Argus