The beleaguered Judicial Service Commission (JSC) has hit back at advocate Izak Smuts, suggesting that his dramatic resignation from the commission this week was motivated by hidden agendas.
This development has widened the fault lines in the already divided legal fraternity with supporters of the JSC yesterday going so far as to say that the advocate’s profession which Smuts represented was part and parcel of what they termed his true motives.
Smuts resigned from the JSC on Friday – the last day of its week-long sitting – after a contentious discussion document titled “Transformation and the Judicial Service Commission”, which was meant to be discussed behind closed doors among JSC members, was leaked.
The JSC and other critics say the reasons Smuts provided for resigning were far from the truth.
JSC spokesman Dumisa Ntsebeza yesterday suggested that by resigning Smuts was effectively throwing his toys out of the cot because the majority of the commission did not agree with his views on candidates and transformation.
“You can’t be in an institution where if you do not find majority support of your views, you go out and rubbish them.
“Maybe it’s just as well he resigned if he is going to be more trouble inside than he is outside the JSC,” Ntsebeza said.
He questioned why Smuts, at the end of Friday’s sitting, simply resigned, and said that Smuts’s reasons were obvious given that he had prepared a two-page media statement which amounted to a “full-frontal attack on the JSC”.
Ntsebeza added that Smuts supported Eastern Cape High Court Judge Clive Plasket, who was from Smuts’s home town and was interviewed for a position on the Supreme Court of Appeal Bench.
When Plasket was not recommended for the job, Smuts questioned the interview process.
Ntsebeza said Smuts’s criticisms were “despicable” and “an insult to Judge (Nigel) Willis” – who was recommended instead of Plasket.
Referring to Smuts’s transformation report, Ntsebeza said the JSC was not opposed to debating the issue openly and transparently, but added that “we want to debate these things robustly internally first”.
“All too frequently it has become the modus operandi of Advocate Smuts to deal with institutions of which he is a member by rubbishing them in public and then waiting for us to engage with him in public.”
The deputy president of the Black Lawyers’ Association (BLA), Kathleen Dlepu, agreed with Ntsebeza, saying that Smuts had resigned because the majority of the JSC did not agree with his views.
“Why is (Smuts) the only one who differs?”
She dismissed the contents of Smuts’s media statement, saying the advocate’s real reason for resigning was because he did not support transformation and was opposed to the Legal Practice Bill, which aimed to transform the legal profession at large, including the advocates profession that he represents.
“We don’t see anything wrong with the JSC. According to us, it is fulfilling its constitutional mandate, which is that transformation is highest on the agenda. We support that,” she said.
Whispers in judges’ corridors also have it that there was more to Smuts’s resignation than meets the eye.
Several described the resignation as “an outrageous attack on a vital mechanism of our democracy” and claimed that the real reason for Smuts’s resignation was that the advocates’ profession felt threatened by the Legal Practice Bill.
“It is a bare-knuckled blow to undermine the current legal order in this country,” an anonymous source added.
In the document Smuts 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”.
In a statement on his resignation, he said the track record of the JSC was “disturbing” and its reputation “tarnished”.
He added that it had become increasingly apparent to him that his understanding of constitutional values was far removed from the understanding of the majority of the commission and that “it is not possible for me to play an effective role on the commission”.
Smuts could not respond to the criticisms of the JSC and the BLA but lambasted Ntsebeza for divulging the manner in which he resigned inside a closed JSC sitting.
“I’ve been criticised by members of the JSC for circulating what I prepared in my personal capacity as a submission I was going to make to the JSC.
“I have never released what happened in the JSC. Ntsebeza needs to consider very, very carefully the oath of confidentiality that he took… That suggests to me that there is a massive double standard here. Who’s right and who’s wrong, I will leave it to the public to decide,” he said.
Meanwhile, Freedom Under Law (FUL) chair, retired Judge Johann Kriegler, said in a statement yesterday that the JSC’s appointment system should be properly interpreted by the courts.
“Freedom Under Law has in the past been compelled to challenge the constitutionality of decisions and conduct of the JSC through the courts – ultimately successfully. Unfortunately this latest sequence of egregious events may well oblige FUL to challenge the JSC yet again.”
Responding to FUL’s statement, Ntsebeza said while court action would cost taxpayers money, the JSC would welcome the clarity that a Constitutional Court judgment would provide.
“The more we are tested the better it is for stability,” he said.