Johannesburg - The judiciary urgently needs more women, but race and gender are not the only considerations for new appointments, says Judge Selby Baqwa.
“The paucity of women in the Bench indicates a need that is urgent,” Judge Baqwa told a conference in Sandton yesterday morning.
He pointed out that just two of the 11 Constitutional Court judges were women. He said the judiciary’s programme of running extra training for women to create a larger pool of potential candidates was not sexist as some critics had said.
“The JSC [Judicial Service Commission] needs a credible pool from which judges have to be selected and we need to go beyond the hackneyed excuses that there are no suitable candidates without doing anything about it,” he said.
The judge said the judiciary had come a long way in 18 years, but ongoing transformation focusing on more than colour and gender was still needed.
Before 1994, judges were invariably white and male. Now of the 237 judges, 71 are African men, 70 are white men, 27 are African women, 20 white women, 16 coloured men, 13 Indian men, 12 Indian women and eight coloured women.
“Quite clearly we have moved a long way from the untenable situation which existed at April 27 1994. It however bears repeating that gender and race are not the only issues at stake when it comes to the transformation of the judiciary,” he said.
“The inculcation of the constitutional values into the attitudes of the judiciary and access to justice, inter alia, are paramount.”
Judge Baqwa, who is a former public protector, said transformation was not just demographics.
“Race and gender are not the only factors to take into consideration when appointing judges. The late Chief Justice [Ismail] Mahomed listed other qualifications such as integrity, energy, motivation, competence, a capacity to give expression to values of the constitution, experience particularly in regard to the values and needs of the community, potential and symbolic meaning of the appointment.
“The decision to appoint is a multi-faceted one and it is not made easier by members of the profession, pressure groups, the media and members of the public suspecting the motives of those who made the decisions and create decisions,” he said.
Judge Baqwa referred briefly to the concept of separation of powers, without referring to the increasing unhappiness on the part of some sections of the government over what was seen as judicial interference in policy matters. The concept of judicial independence rested on the principle of separation of powers between the executive, legislature and judiciary, which was intended to prevent the concentration of power in one branch to the detriment of the others, he said.
The judiciary should not be seen as being under the influence of one of the other branches.
He said the separation of powers was a “delicate concept” in South Africa in the light of the transformative constitution and the courts, when interpreting socio-economic rights.
He said case law showed that “our constitutional framework does not result in absolute separation”.
“Within the ambit of the separation of powers the legislature, the executive and the judiciary have distinct but interdependent roles and responsibilities,” said Judge Baqwa.