Cape Town - Advocate Paul Hoffman, director of the Institute for Accountability, has blasted the Judicial Service Commission (JSC), saying it violates the constitution when it appoints people solely based on race and not expertise.
Last week he added to questions by retired Supreme Court of Appeal deputy judge president Louis Harms on why advocate Jeremy Gauntlett had again not been appointed to the Western Cape High Court Bench. Gauntlett has now failed four times to be appointed to the Bench.
Judge Harms sent a letter last week to the JSC to ask if it was even necessary to nominate white lawyers for the Bench. Hoffman said in February this year that the JSC should be composed of retired judges as they would have a better idea of what the Bench needs. The JSC is currently composed mostly of politicians and sitting judges.
Gauntlett has now been nominated for a pending Constitutional Court vacancy early next year by IFP president Mangosuthu Buthelezi, human rights lawyer Sir Sydney Kentridge, and by veteran anti-apartheid activist Mamphela Ramphele.
Talk has been rife in the legal fraternity that the “conservative” Chief Justice Mogoeng Mogoeng wants Gauntlett on his Bench as a counterpoint to influential “liberal” Justice Edwin Cameron.
Cameron is an intellectual heavyweight who holds a lot of sway among colleagues on the Bench and Gauntlett is widely regarded as one of South Africa’s best legal minds.
Hoffman said advocate Mokgoatji Dolamo should not have been appointed to the Western Cape High Court over Gauntlett who has more experience. “The essence of the explanation is that the JSC would be ‘doing violence’ [its words] to the provisions of section 174(2) of the constitution were it to perpetuate the alleged oversupply of white male judges in the Western Cape by appointing two white male applicants instead of one in the process of filling the five vacancies overall.
“This suggests a race-based ‘slate’ designed to limit the number of white males introduced to the Cape Bench, presumably until it reflects a content that matches national demographics, being 5 percent, or provincial demographics perhaps, where the proportion is somewhat higher,” he said.
Hoffman added that the high number of white male judges on the Bench had been whittled away since 1994 by retirement, promotion and death. He said there were now only nine out of 29 permanent white male judges in this province.
“This rapid attrition rate represents, in the context of the average time span of about 20 years of judicial service by individual judges, a remarkably efficient reduction in the proportion of white men,” Hoffman said.
He said by contrast, the number of white women had remained steady at around one or two while all other demographic groups had increased.
“The notion of achieving a perfectly balanced judiciary which mathematically reflects race and gender demographics in the country is deeply and darkly unconstitutional. This is because non-racism and non-sexism are foundational to our new order. Ideally, litigants should want a good judge, no more and no less,” Hoffman said.
He said Dolamo and Gauntlett were not batting in the same league and Dolamo had a disciplinary record for infringements whereas Gauntlett had none.