In “The Old Regime and the Revolution”… Alexis de Tocqueville observed that, in the decades leading up to the Revolution, France had been notably prosperous and progressive. We hear a lot about the hunger and the song of angry men, and yet the truth is that, objectively, the French at the start of the seventeen-eighties had less cause for anger than they’d had in years. Tocqueville thought it wasn’t a coincidence. “Evils which are patiently endured when they seem inevitable, become intolerable when once the idea of escape from them is suggested,” he wrote.
The problem with the JSC’s approach to judicial appointments is that the body has embraced a narrow and constitutionally problematic idea of what both “transformation” and “merit” mean. By stating that there is a tension between the need to appoint judges on “merit” and the need to appoint more black and female judges (as part of the need to transform the judiciary), the JSC is saying that black and female appointees often do not possess the same “merit” as white candidates. This is highly problematic as it perpetuates the deeply entrenched white male-centric (some might say racist and sexist) notion that upper middle-class white men are almost always superior in “merit” to black and female candidates.
I would argue that there is an urgent need for the JSC to re-visit its conceptions of “merit” and “transformation” to avoid the unjustified stereotyping of black and female candidates as generally possessing inferior “merit”.
“Merit” is not a completely objective and universal standard. We make many assumptions about what constitutes “merit” when we judge one candidate to have a higher “merit” than another. These assumptions are often based on the worldview of the culturally and economically dominant group whose specific skills are valorised and assumed to form part of any assessment of a person’s “merits”. Those who are culturally and economically not dominant often possess different skills-sets – valuable in its own right – that are nevertheless not valued, or not sufficiently valued. Those who are not members of the cultural and economic dominant group (or who have not managed the skill to mimic the attributes and attitudes of the culturally and economically dominant group) are often dismissed as not possessing the requisite “merit” to be appointed to positions.
For example, in South Africa an often-unstated assumption is that a person who speaks and writes English fluently is more admirable than one who does not. But why do we often not acknowledge that people who are fluent in several of South Africa’s languages have skills that somebody who is only fluent in English does not have? Surely a judge who is fluent in English as well as isiXhosa, isiZulu, Sesotho, Setswana and siSwati possess skills to understand and communicate with people coming before the court that a monolingual English-speaking judge does not?
Moreover, in a multicultural society like South Africa, the kind of experience and skills assumed to confer high “merit” on a candidate for appointment to the bench might very well make such a candidate less (not more) suitable for appointment because it might hinder that candidate’s ability to dispense justice between ordinary people or to interpret and apply the various provisions of the Constitution in a manner that would promote and protect the interests of the vulnerable and the marginalised in society.
Thus, a judge who grew up in Houghton, went to an English private school in the midlands and then studied at Oxford before practicing at the Bar where he did mostly commercial work for big corporations, might lack the wisdom and experience – and therefore a different kind of “merit” – that another judge who grew up in a rural village, studied at Fort Hare and lived in Soweto while working for a small law firm might possess. In some context – commercial litigation – the kinds of merit associated with such a candidate might come in handy. In other context, it would be at best irrelevant and at worse a hindrance.
Of course, a candidate should only be appointed to the bench if he or she has the requisite technical legal skills to be able to judge a case a write a well-argued judgment. But once it has been established that a candidate has these skills, other factors that have very little to do with technical legal skills must surely also be considered to ensure that the candidates possessing the highest “merit” – broadly defined – are appointed to the bench.
This is exactly why 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”. This section recognises that an elite – all white and all male – judiciary will not have the broader skills to hand down legitimate, well-informed judgments advancing and protecting the interests of the vulnerable and marginalised in society. One of the strengths of the Constitutional Court is exactly that it is made up of 11 people (admittedly only two of them women) from diverse backgrounds and with vastly different life experiences who are capable of learning from one another.
If I am correct, this also implies that although the starting point for the transformation of the judiciary will always be the need to change the racial and gender composition of the bench, the notion of “transformation” should also be understood as requiring the appointment of judges who have demonstrated a strong commitment to the pro-poor, pro-human dignity, pro-egalitarian ethos embedded in our Constitution and in the jurisprudence of the Constitutional Court.
This is why the decision of the JSC to recommend justice Nigel Willis for appointment to the JSC is so perplexing and why it runs counter to that body’s stated commitment to advance judicial transformation. Justice Willis has demonstrated a remarkable animosity to the egalitarian ethos of the Constitution as developed by the Constitutional Court.
In the infamous case of Emfuleni Local Municipality v Builders Advancement Services CC and Others judge Willis lambasted the Constitutional Court for stating that it was “inexcusable” for Willis to have ordered the eviction of unlawful occupiers “without having regard to the provisions of PIE”. Wrote Willis: “Quite how the Constitutional Court could have come to this conclusion is one of the great unfathomable mysteries of my life.”
In the Emfuleni case, in what judge Willis in a later judgment called his “cri de coeur” on economic freedom, the honourable judge extolled the virtues of laissez-faire capitalism and the deregulation of the economy in terms that Margaret Thatcher or the Free Market Foundation would have cheered on.
One does not, in my view, ‘save’ jobs by making it more and more difficult to dismiss employees and one does not make housing more widely available by rendering the ownership of property which is let to tenants a serious economic hazard.
In an earlier concurring judgment of the Labour Appeal Court in Woolworths v Whitehead, Judge Willis ridiculed the idea that a women’s pregnancy could not be taken into account when deciding whether to offer her a job. In the process the honourable judge displayed the kind of attitude towards women that is difficult to square with the progressive values in our Constitution, stating that:
I think that Western culture could derive much wisdom from the view prevalent in African, Hindu, Muslim and Chinese cultures that the first few weeks of a child’s life should be a special time with its mother, with both of them freed as much as possible from outside distractions and surrounded by love and support. Moreover, motherhood is not some minor inconvenience in a woman’s life. I also think we should be astute not to cultivate the idea that motherhood is entirely secondary to the greater glories of job satisfaction.
The judge then distinguished “lowly paid, dreary and routine jobs with which women, especially, are burdened” from more high paying jobs as executives, arguing that in the latter case a women’s pregnancy can legally be used to disqualify her for appointment because:
They impact negatively on the capacity of the economy, as a whole, to grow and, in so doing, its capacity to create new jobs. In my view it would be inappropriate for this court to deliver a judgement as though it were cocooned in the intellectual and moral parameters of a rich, first-world country. It would be inappropriate to ignore the fact that, as a general rule, the existence of elites can only be justified if they produce a dividend for society that exceeds the costs which they incur. To find that the pregnancy of a prospective employee cannot be taken into account in deciding whether or not to offer her employment may seem to be fair to prospective employees but it would certainly be unfair to employers and society as a whole and, by reason of the damaging consequences of such a finding upon society as a whole, ultimately unfair to prospective employees as well. After all, prospective employees need jobs to apply for in the first place.
In other words, employers can discriminate against women who do higher paying jobs because the free market demands it and employers and society should not bear the cost of this – especially because having children is its own reward.
In my view, a candidate who holds such views – so completely out of kilter with the values embodied in the Constitution as well as the stated economic policies of the governing party – does not possess the requisite “merit” to be appointed to the SCA. But the JSC, whose narrow view of “merit” and transformation can make you wonder whether they are channeling Margaret Thatcher, obviously disagrees.