Judges' appointments 'not all about merit' - CJ

'Merit does count, but it is not all about merit. Transformation is just as important,' Chief Justice Mogoeng Mogoeng is quoted as saying. According to a City Press report, Mogoeng was speaking in response to a discussion document - debated at the JSC on Monday - presented by Advocate Izak Smuts, a commissioner, which stated the JSC should inform white males they need not apply if it was set against appointing them. Smuts said he believed such a position to be unconstitutional and said the JSC should guard against perceptions that it was pursuing a covert political agenda. Mogoeng said 'appropriately qualified persons, men and women of all races, who are fit and proper, are encouraged to accept nomination for appointment as judicial officers'. He made the point white males were regularly recommended for appointment and added that the JSC had never pursued a 'so-called covert political agenda'. According to the report, Mogoeng added he did not understand constant concerns about political interference in the appointment of judges. 'I dare say, there are very few constitutional democracies that have gone out of their way to have a body that recommends judges for appointment constituted in the way the South African body is. Go to America, go to Germany, go to Russia, go to the UK, it is a politician's work, so the question of political influence does not even feature,' said Mogoeng is quoted as saying Full City Press report

Mogoeng also said it was 'unfortunate' that the document had been made public as it was intended to 'stimulate internal debate and discussion'. The Chief Justice said Smuts had apologised for his 'error of judgment' during a closed session of the commission that had taken up all of Monday, notes a Mail & Guardian Online report. Mogoeng said the commission was committed to consider the obligation of Section 174(2) of the Constitution to 'reflect broadly the racial and gender composition of South Africa' when judicial officers are appointed - and that it would continue to do so. According to a Business Day report, Mogoeng said the criteria used by the JSC were the same as those formulated under late Chief Justice Ismail Mahomed. These criteria had been used 'consistently under the chairmanship of the late Chief Justice Arthur Chaskalson and former Chief Justices Pius Langa and Sandile Ngcobo'. Full Mail & Guardian Online report Full Business Day report

Plasket, perhaps unsurprisingly given the tone of yesterday's interview, has been overlooked for appointment to the SCA, notes Legalbrief. South Gauteng High Court judges Halima Salduker and Nigel Willis have been recommended to fill the two vacancies. A report in The Times notes Plasket crossed swords with commissioners, including Justice Minister Jeff Radebe, who said his approach would set back efforts to transform the judiciary. Plasket, a human rights lawyer since the 1980s who defended many political detainees, faced a barrage of questions from commissioner Dumisa Ntsebeza over the principle of appointing experienced white male judges over less experienced black women. Plasket said gender considerations should not be used to sideline experienced white men. 'The fact that the one candidate is female, I would suggest, isn't good enough to trump merit.' He added, however, that 'it becomes a lot trickier when the merit gap is a lot closer'. He said in instances in which a white male judge had 70 published judgments while a black female judge had six unpublished judgments, the appointment of the white male would be completely justified. Full report in The Times

Plasket was grilled for more than two hours - in stark contrast to Salduker's and Willis' interviews, neither of which lasted more than an hour. Plasket, who is acting at the SCA and is an expert on administrative law, was questioned over a SCA judgment - a case he had not sat on - that had found the JSC had acted irrationally in not appointing candidates to four vacancies at the Western Cape High Court. According to a Mail & Guardian Online report, Plasket said he imagined the Supreme Court judgment to be 'correct', adding that 'rationality isn't a free-flowing concept' and that 'a decision must be rationally linked to the purpose of the power given'. With Smuts' report hanging over the interview, Plasket, asked what his impressions of the JSC attitude to the appointment of white males, said it was a 'very uncomfortable question to be asked' and that he could 'only go by my previous experience here ... Unfortunately that is not very helpful as I do not know the reasons why I wasn't recommended.' Plasket said he was supportive of transformation within the judiciary, but that transformation wasn't about using a 'calculator' and Statistics South Africa figures on the country's demographics. Rather, said Plasket, transformation of the judiciary through appointments involved a 'balancing of competing factors' including experience, reported judgments, adherence to constitutional values and the need for affirmative action on a particular Bench. Full Mail & Guardian Online report

In her interview, Saldulker was questioned by SCA president Lex Mpati about her performance as an acting judge on the SCA, notes a City Press report. 'The comment that was made was that you don't make the contribution that is expected of you during hearings and your judgments have to be worked on during hearings of the panel,' said Mpati. Saldulker responded that 'all candidates must be given a chance to grow and develop; it's all part of the transformation process'. The report notes Willis had an easier time than expected in his interview. A judgment written by Willis in which he criticised a decision of the Constitutional Court - which overturned one of his rulings - did not attract as much flak as expected from the JSC. Willis explained that he was 'very annoyed' in the way he was treated. 'To say of another judge he 'ignored' the provisions of (legislation) is highly offensive,' said Willis. The JSC also conducted interviews for a position on the electoral court, but did not recommend anybody for appointment. Full City Press report