When will the JSC begin to take transformation seriously?

I do not hold a brief for Advocate Jeremy Gauntlett, but the reasons provided by the Judicial Service Commission (JSC) for not appointing him as a judge says more about the ideological conservatism and dysfunctionality of the JSC (whose members often subject candidates for judicial appointment to irrelevant or laughably uninformed questions) than it says about Advocate Gauntlett’s suitability for appointment to the bench.

Almost everyone agrees that Gauntlett is a brilliant lawyer – at least in the narrow, technical, sense. But personally I do not think that he would be a very good judge in a country like South Africa where there is a need for the law to be developed and applied in ways that would protect the vulnerable and marginalised against exploitation by the rich and politically powerful (both in business and in government). Given his conservative legal philosophy and his inability to recognise that – like everyone else – his views about legal reasoning and technique are based on ideologically loaded assumptions, I see Gauntlett as a candidate more suitable for appointment to the bench in the Tory governed UK, than in a progressive, constitutional state like South Africa.

It is unclear whether, as a judge, he would enthusiastically develop the (often unjust) common law rules to bring them in line with the demands of the Bill of Rights. Judges who are stubbornly wedded to the fiction of legal clarity and certainty often show a reluctance to develop the common law rules to align them with the values contained in the Bill of Rights. They see such an approach as being too activist and as leading to too much legal uncertainty.

I suspect Gauntlett would be the kind of judge who would want to hide behind old-fashioned formalistic methods of interpretation to shield the common law from needed development. In fact, as far as I can tell, his legal philosophy is closer to that of Chief Justice Mogoeng Mogoeng and recently appointed Constitutional Court judge Ray Zondo than it is to that of progressive lawyers and judges who see legal transformation as something far broader than the need to replace conservative white patriarchal judges with conservative black patriarchal judges.

But because many members on the JSC are spectacularly uninformed and out of their depth, or share the deeply conservative, anti-transformative, agenda of the present Minister of Justice and his government, candidates before the JSC are seldom asked the tough and probing questions that would help us to determine what their broader views on the transformation of the law and legal culture might be and whether they would protect the interests of the vulnerable and marginalized against the powerful and rich (inside and outside government). Instead the JSC often focuses on completely irrelevant factors, asking questions about a candidate’s religion or how often they have ruled against the government – as if there is anything wrong for a High Court judge in a constitutional state based on human dignity, equality and freedom to rule against big business or the government in order to protect the vulnerable, marginalised and poor.

In Gauntlett’s case, the JSC expressed a concern that “he has a ‘short thread’ and that he can be acerbic at times”. While some Commissioners accepted his assurance that as a Judge one is removed from the immediate combative situation that counsel usually find themselves in, others expressed “strong reservations” whether, as part of his attributes, “he has the humility and the appropriate temperament that a Judicial Officer should display”. In short, some JSC members decided not to appoint him because they did not like his guts.

Has anyone ever heard a more ridiculous reason for not appointing a lawyer to the judiciary? Let’s face it, advocates seldom become successful because they are humble servants of the court and lack a sharp tongue. If the JSC is now going to refuse to appoint any senior advocate to the bench because he or she is not dripping with humility and is too combative, then it is going to be hard pressed to find any half decent lawyer to appoint to the bench.

On the face of it, the second reason is slightly more plausible. According to the JSC a “very important consideration” it took into account was the demographic composition of the Western Cape High Court Bench:

It was argued that considering the number of white male Judges in that Court as compared to other races was such that were two white males to be appointed (at that stage the focus was on Advocates Gauntlett SC and Rogers SC) the Commission would be doing violence to the provisions of section 174(2) of the Constitution.

Section 174(2) of the Constitution states that “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. There are two important reasons why this provision was included in the Constitution.

First, in order for the judiciary to become more legitimate and more credible in the eyes of ordinary citizens, it was imperative for the judiciary to shed its almost exclusively white and male character. Given the deeply entrenched and pervasive racism and sexism in our society an all-male and exclusively white judiciary would hardly instill confidence with the vast majority of citizens.

Second, we live in a diverse society. Many white male lawyers live a relatively insular middle class life and few would normally be in tune with the lived reality of the vast majority of South Africans. Creating a more diverse bench helps to bring more people of diverse backgrounds and with diverse experiences and opinions into the judiciary and can enhance the quality of justice dispensed by our courts.

Despite these being laudable goals, I find the reasoning of the JSC depressingly narrow-minded and on shaky legal grounds to boot. While there is a need to keep on working at changing the racial and gender composition of the bench, it seems rather absurd to equate judicial transformation solely with the change in the racial and gender composition of the bench. Race and gender should be the starting point, but if one is serious about the transformation of the judiciary, one would have to take into account whether candidates for appointment have embraced the values enshrined in the Constitution.

To do that, members of the JSC would have to be conversant with the basic constitutional issue and would have had to ask candidates about their views on the important constitutional and other legal issues that would give a clear indication of whether a potential appointee will respect the Constitution and whether he or she will hand down judgments that will protect the rights of everyone, but in particular the marginalized and vulnerable in society.

In my opinion a candidate who believes that the Constitutional Court’s affirmative action jurisprudence may be too radical should not be appointed to the bench. Neither should one who is reluctant to use section 39(2) of the Constitution to speed up the transformation of the common law to bring it in line with the “spirit, purport and objects” of the Bill of Rights. Neither would a candidate be suitable if he or she is not eager to protect freedom of expression and access to information or would be willing to endorse censorship aimed at hiding corruption.

Personally, I would be reluctant to appoint a judge who does not support the Constitutional Courts jurisprudence on sexual orientation discrimination, who holds sexist or racist views or who harbours prejudices against people with disabilities. And a candidate who disagrees with recent Constitutional Court jurisprudence on evictions which leans towards placing a duty on municipalities to provide alternative accommodation when large scale evictions from either private or publicly owned land are planned, would not get my vote either.

Section 174(2) requires the JSC to take into account the need for a more racial and gender diverse bench. It does not require the JSC to appoint a candidate with a questionable commitment to some of the broader transformation goals set out in the previous paragraph merely to meet racial quotas.

Surely if the JSC wanted to appoint good judges that would drive the transformation agenda, it would not only look at race (and as an afterthought, gender) when making appointments. It would look for candidates who understand that legal rules often benefit the rich and powerful and often harm the poor and vulnerable, candidates who understand that formal legal rules that are interpreted in a formalistic manner will often not produce a just outcome, candidates that are willing to interpret legislation and develop the common law to make the law ever so slightly more just and equitable.

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