OPINION: How should the JSC in future conduct its business in the selection of Judges on the Bench? There should be a Code of Conduct that would address conflict of interests when a candidate appears before commissioners who are litigant parties in a matter before him or or her, writes Advocate Dumisa Ntsebeza.
In the wake of the drama that played out at the recent Judicial Service Commission interviews for the position of chief justice in South Africa, I was requested to address the following themes:
How important would the appointment of Justice Maya, as the very first woman Chief Justice?
How should the JSC in future conduct its business in the selection of judges on the Bench?
How can Justice Maya contribute to the transformation agenda in the judiciary?
I was reluctant to speak out. However, I remembered the oft-quoted words of Pastor Martin Niemöller:
“First, they came for socialists, and I did not speak out – because I was not a socialist.
“Then they came for the trade unionists, and I did not speak out – because I was not a trade unionist.
“Then they came for the Jews, and I did not speak out – because I was not a Jew.
“Then they came for me – and there was no one left to speak for me.”
Importance of appointing Justice Maya as first woman Chief Justice
Justice Maya appropriately answered this question in the interview. One male commissioner had even remarked: “I am trying to think of a woman who has risen to such majestic heights of success like you.”
Justice Maya said: “I don’t think it is a proper question to ask because it implies all sorts of negative things.
“But the short answer is, South Africa has always been ready to have a woman chief justice … I am a judge, I’ve proven myself over 22 years. I’m not good because I am a woman; I’m just a good woman judge.”
Prof Gqola, in a piece in the ‘City Press:1’ labelled the remarks, mainly by male commissioners as “classic patronising patriarchal comment parading as … well intentioned.”
That said, it is important that a woman chief justice was recommended – an opportunity the JSC missed before. There was never a scarcity of female judges in the Constitutional Court: Justices Yvonne Mokgoro, Kathy O'Regan, Bess Nkabinde, Nonkosi Mhlantla, Leona Theron, Zukisa Tshiqi and Sisi Khampepe, Khampepe retiring as an acting chief justice.
Maya should raise no eyebrows. Ruth Ginsburg, a US Supreme Court Judge, made the point well:
“When I’m sometimes asked when will there be enough (women on the Supreme Courts? I say, ‘when there are nine’. People are shocked. But there’d been nine men, and nobody’s ever raised a question about that.”
How should the JSC in future conduct its business in the selection of Judges on the Bench?
There should be a Code of Conduct that would address conflict of interests when a candidate appears before commissioners who are litigant parties in a matter before him or or her. Further, unsubstantiated rumours or allegations should be put to a candidate in advance so that s/he can deal with it fully and properly.
It is not enough to say the candidate had been asked in a questionnaire if there was anything that would embarrass him/her if it came out at the interviews. If in response to that question s/he responds in the negative, the Code should explicitly obligate a commissioner who still wants to put questions at the interview, to disclose the rumour, so that the candidate can engage it.
The commissioner should share the responses with his/her fellow commissioners, soliciting their collective wisdom whether his/her exchanges with the candidate warrant that the issue can be raised in a public interview of the candidate, even if it is unsubstantiated.
The questioning of Judge Dunstan Mlambo JP would not have met this standard. The chair and other commissioners---would have been able to stop any line of questioning if it did not meet the standard commanded by the Code I propose, commissioners must be allocated time. Questioning should happen within the allocated time, with limited follow-up questions.
No candidate should be interviewed for the whole day. Commissioners should choose which matters are critical to canvass with the candidates.
At the Marikana Commission, that kind of regimentation initially appeared unfair to practitioners representing families of mineworkers who had been injured or killed. That one knew the time within which to make one's points concentrated our minds onto what was relevant to advance the cause of those whom we represented. The chairperson had a very tight hand on the time – just like the Chief Justice at the ConCourt keeps a tight grip on time. It is doable. Commissioners would get used to it.
How can Justice Maya contribute to the transformation agenda in the judiciary?
Maya CJ would understand her role in running a court that meets the mandate of section 174(2) of the Constitution: a need for the judiciary to reflect broadly the racial and gender composition of South Africa.
As chief justice, she would be consulted by the president, for the appointment of other Constitutional Court judges.
In reply to criticism that there were mainly white male acting judges in the SCA, she explained that the wealth of experience was with white males –a consequence of the apartheid era racialisation of opportunities.
She had been quite intentional acquiring white acting judges, – for skills transfer to a cohort of black acting judges – who then got appointed to vacancies that became available. The demography of the SCA was consequently compliant with the Constitution. Her court has about 21 judges. The majority are black males and females.
Conclusion
Justice Maya will find a ConCourt of nine judges, with no white judges, male or female. There will be vacancies for two more judges.
As a leader of the judiciary--if appointed--- she should persuade the JSC that the vacancies should be filled in by white judges, preferably male and female, not as an act of “bean counting”, or of slavishly following the dictates of section 174(2) of the Constitution, but as an expression of one of the foundational values of our Constitution … non-racialism and non-sexism.
* Advocate Ntsebeza, SC is deputy chairperson of the Pan African Bar Association of South Africa. He writes in his personal capacity.
** The views expressed here are not necessarily those of IOL and Independent Media.
Insider
.
.