Cape Town 09-04-13- Interviewing potential judges at the Protea Hotel in Bantry Bay are l to r Supreme court of Appeal president Lex Mpati , Chief Justice Mogoeng Mogoeng and Jeff Radebe Chief Justice Picture Brenton Geach

Cape Town -

The “race factor” was being contorted when it came to the appointment of judges, which could create a false impression of “reverse racism”, Chief Justice Mogoeng Mogoeng has said.

Speaking at the 18th Commonwealth Law Conference in the Cape Town on Monday, the chief justice came out in defence of how the Judicial Service Commission (JSC), which he chairs, goes about its business. He said when South Africa became a democracy, the country had about 170 judges. Two were women and three were black.

Since October 2009 the commission had recommended 46 black men, 21 black women, 22 white men and eight white women for appointment to higher courts.

“And we can provide you with even more statistical proof that any suggestion that there is some hunger maybe to get even with our white male compatriots is unfounded,” the chief justice said, addressing the conference’s local and foreign delegates at the Cape Town International Convention Centre.

“As a matter of fact, even during (last) week’s (JSC) sitting, two white males were recommended for appointment. How, then, does this race factor get contorted in the manner that it is, with the disastrous possibility of creating a false impression in the international community that we want to apply reverse racism? And not just the politicians this time; even judicial officers are party to that irresponsible drive to delegitimise the judiciary themselves.

“As I said, we would do well to tread gingerly or hamba kahle (go well)… ”

Justice Mogoeng said the question of whether there was a need to transform the country’s judiciary “doesn’t require a debate”.

“Transformation does not even require to be defined. We know what the problem was,” he said. “We’ve got to address it, and address it responsibly. And I can’t imagine the JSC going about its business in an irresponsible and reckless manner.”

He noted that some of the commission’s decisions had been challenged in court.

But he questioned how the JSC, considering the magnitude of the responsibility that rested on its shoulders, could “play games”.

This follows a contentious round of interviews last week in which the JSC interviewed 23 candidates to fill several vacancies on the Bench.

Before the sitting began last Monday, the contents of a discussion document drafted by commissioner Izak Smuts, SC, was reported in the media. Smuts himself had sent it to certain colleagues and media representatives.

In the document, Smuts said there was a “very real perception in certain quarters” that the JSC was set against appointing white men, except in exceptional circumstances, and called on the commission to “come clean” about it so that white male candidates weren’t put through “the charade of an interview before being rejected”.

Smuts’s resignation as a commissioner was announced on Friday. On Sunday, he told the Cape Times that the JSC, which last week said it had had “robust” debate over the issue, hadn’t debated the contents of his document.

Justice Mogoeng said when appointments were made to courts such as the Supreme Court of Appeal and Constitutional Court, people became “worked up and very active”.

“What they do in support of preferred candidates often borders on the sort of campaigns which we thought were reserved for politicians.”

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Cape Times