Smuts and the JSC - divisions entrenched

His resignation has not only led to calls for the commission to make public its criteria for choosing judges, but has resulted in a threat to go to the courts for guidance on the process. Smuts, who suggested in a report commissioned by the JSC and then leaked in the media that white candidates for the Bench were being overlooked because of the colour of their skin, quit because his 'understanding of the constitutional role and duty of the commission, and even of basic rights such as those of human dignity and freedom of speech, is so far removed from the understanding of the majority of commissioners', that he could no longer play an effective role. At issue, notes Legalbrief, is not the need for transformation but the process by which it should be achieved - and the role that merit should play in that process.

The legal action against the JSC is being threatened by Freedom Under Law for bringing the judiciary into disrepute. Retired Constitutional Court Justice Johann Kriegler, chairman of the non-profit organisation, said the resignation of Smuts was casting a bad light on an institution that should be above petty squabbles, according to a report in the Sunday Times. It notes Kriegler said Freedom Under Law was still considering whether to approach the court to intervene. 'It is always regrettable when the image of a public body that ought to enjoy the undivided support of the country is brought into question, but when the alternative is continued impairment of the rule of law, the choice is clear,' Kriegler reportedly said. He added that Smuts' resignation - and the reasons he had given for stepping down - meant that something was wrong with the way the commission did its work. According to a City Press report, Kriegler said merit should trump transformation in the appointment of judges. And according to Weekend Argus, he suggested the courts should interpret the sections of the Constitution that apply to the appointment of judges. 'We would welcome a definitive judicial interpretation of the section.' Full Sunday Times report (subscription needed) Full Weekend Argus report (subscription needed) Full City Press report

For judges to fulfil their roles as the protectors of people's liberty and the Constitution, 'they had to be seen to be legitimate,' Kriegler is quoted as saying in a report in The Mercury. This required that the appointment mechanism - in this case, the commission - needed to be seen to be fair and legitimate. However, from the events that unfolded last week, it seemed 'these guys (on the commission) are being capricious'. He reportedly said the question came down to whether the appointment of women and black judges was now a primary reason for their appointment.'Are you promoting transformation or are you appointing people to staff the highest courts?' Full report in The Mercury (subscription needed)

A BDlive report notes Smuts got into hot water with other commissioners when he publicly released the internal discussion document he had penned on the transformation of the judiciary. In it he questioned the commission's attitude to the appointment of white men as judges, calling for an 'honest debate' on the issue. He said that if it were the commission's approach that it would only appoint white men in exceptional circumstances, it should come clean and say so. After a lengthy and 'robust' debate on the perennially sensitive issue, the JSC announced it had reaffirmed its long-held position on transformation and that Smuts' actions in circulating the document outside of the commission had been regrettable and an 'error of judgment'. Smuts said the commission had 'left a trail of wasted forensic talent in its wake', and named SCA Judge Azhar Cachalia (overlooked for promotion to the Constitutional Court) and Advocates Geoff Budlender SC, Willem van der Linder SC, Torquil Patterson SC and Jeremy Gauntlett SC as examples of 'intellectual forensic excellence, steeped in the values of the Constitution' who had been overlooked for appointment or promotion. Lastly, he referred to Eastern Cape High Court Judge Clive Plasket, who last week was overlooked for promotion to the SCA, to the surprise of many. Smuts said the JSC's approach had resulted in a 'massive loss to our courts'. In a country 'still seeking to establish a new value-based foundation for its existence, the waste of talent and experience was not rationally explicable', he said. Full BDlive report

The Mail & Guardian says Smuts was also critical of the litigation the JSC has pursued in recent years. 'The commission has repeatedly been involved in litigation regarding the manner in which the majority on the commission has directed its affairs. None of the litigation has ultimately met with success. The image of the commission has been tarnished in consequence,' stated Smuts. The report notes that in the past four years the SCA ruled that a commission decision not to fill two out of three vacancies on the Western Cape Bench to be 'irrational', among other judgments against the commission. Full Mail & Guardian Online report

Constitutional law expert Pierre de Vos says the commission needs to have a set of 'clearly-enunciated criteria' to be applied consistently. 'It would be helpful if everyone knows where they stand,' he is quoted as saying in a Weekend Argus report. Chris Oxtoby, a researcher at UCT's Democratic Governance and Rights Unit - which monitors the JSC interviews - echoed De Vos' views, according to the report. 'There are obvious, vast and fundamental divisions within the JSC and its role and how it should be fulfilling its transformation mandate,' Oxtoby said. He added that the whole point of having a commission was so that the system of appointing judges was open, transparent and accountable. However, Oxtoby added that what the commission needed was, firstly, to articulate its approach to the transformation of the judiciary and, secondly, to ensure that there was greater consensus and shared understanding between commissioners. 'We need to find common ground,' Oxtoby explained. Paul Hoffman, of the Institute for Accountability in Southern Africa, reportedly told Weekend Argus that the JSC's approach to transformation amounted to a 'dumbing down of the judiciary'. 'You should be looking for the best of the best, and if you don't it's a recipe for disaster,' he said. Hoffman suggested that what was needed was that the sections of the Constitution, which the JSC applies when considering candidates for judicial vacancy, be properly interpreted by the Constitutional Court. Full Weekend Argus report JSC must redefine merit to advance judicial transformation (by Pierre de Vos)

Veteran struggle and human rights lawyer George Bizos told City Press he was saddened by the events. Bizos, who served on the JSC for 15 years after being appointed by President Nelson Mandela, reportedly said the JSC of today was going about its business in a 'substantially' different manner to the body he'd served on. A senior advocate of the Johannesburg Bar reportedly told City Press that while the JSC did indeed appoint white males, the problem was that 'they don't pick the ones who are the most exceptional and the most talented. What that speaks to is not a white male issue ... It's that the JSC has embarked on a calculated campaign to keep progressive, ¬independent-minded judges off the country's highest courts'. Full City Press report

The JSC and other critics say the reasons Smuts provided for resigning were far from the truth, notes a Weekend Argus report. JSC spokesperson Dumisa Ntsebeza 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 is quoted as saying. Ntsebeza added that when Plasket was not recommended for the SCA post, Smuts had questioned the interview process. Ntsebeza said Smuts' criticisms were 'despicable' and 'an insult to Judge (Nigel) Willis' - who was recommended instead of Plasket. Referring to Smuts' 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'. The deputy president of the Black Lawyers' Association, Kathleen Dlepu, reportedly 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' media statement, saying the advocate's real reason for resigning was that he did not support transformation. Full Weekend Argus report (subscription needed)