We’ve got a president who makes things up, and won’t retract when he’s cornered. This week press secretary Sean Spicer followed the leader. He picked up Trump’s wiretap story and added a new exciting detail: Not only had Barack Obama bugged Trump Tower, he might have used British intelligence spies to do the dirty work. The British, of course, went nuts, and national security adviser H. R. McMaster tried to smooth things over. McMaster is new to the job, having succeeded Mike Flynn, who had to resign for lying about his phone conversations. Flynn was not even around long enough for us to find out that he was also a lobbyist for Turkish interests and took $68,000 from various Russian connections.
It is less than ideal – but perhaps not surprising, given the way lawyers like to gossip – that news of the non-appointment of Adv Jeremy Gauntlett to the Cape High Court bench leaked out before an official announcement was made about the matter. Gauntlett is often described as one of South Africans most brilliant legal minds and many observers thought that the JSC would nominate him for a position on the bench.
It is unclear to what extent perceptions about Gaunlett’s alleged patronising attitude towards judges and fellow lawyers played a role in the decision. It is not for me to speculate about such things.
However, the affair made me wonder again on what basis a reportedly brilliant lawyer should be denied appointment to the bench. Is it ever justified to deny a brilliant and experienced lawyer an appointment to the bench and if so, on what grounds may the JSC do so?
Section 174(1) of the Constitution states that “any appropriately qualified woman or man who is a fit and proper person” may be appointed as a judge. However, section 174(2) states that the “need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered” when judicial appointments are made.
As I understand these two sections, any lawyer who is appropriately qualified and has the necessary integrity and honesty may be appointed to the bench. Constitutionally, there is no need to appoint the most brilliant lawyer if other qualified candidates are available and the appointment of those candidates would help to address the racial and gender imbalances on the bench.
Ideally, this would mean that the most suitable white male candidates (more about this later) would be appointed along with the most suitably qualified black men and women. This would lead to an end to the kind of affirmative action for white men which used to characterise the appointment of some judges during the apartheid era.
If the JSC does its job, it would ensure that the most brilliant white male candidates who would also make outstanding judges in our new constitutional order were appointed along with the most brilliant candidates from other race and gender groups.
But what would make someone an outstanding judge and hence a suitable candidate for appointment to the bench?
It is my contention that a person’s brilliant legal mind is not enough to warrant appointment to the bench – no matter what the race or gender of the person might be.
First, the person needs to have the appropriate judicial temperament to deal fairly and calmly with the parties that appear before him or her. An overtly emotional or aggressive lawyer, a lawyer that is so arrogant that he or she makes up his or her mind before hearing the arguments from both sides, will not make a good judge.
Second, a good judge will try and apply the relevant legal rules in such a manner that justice is served in the case – at least as far as the legal materials allows for it. A good judge will have a sense of fairness and justice and this, in turn, will require the judge to have some awareness of his or her own world view and the way in which his or her life experience and other emotional and ideological commitments might colour his or her view of a particular case.
More is required than a mere formalistic adherence to “objectivity” (which is desirable but will always remain somewhat illusive). An understanding of how a specific ruling will affect the litigants and some awareness of the consequences of the ruling for society as a whole will do much to ensure that a judge acts as fairly and as justly as the law allows.
Third, it is my contention that a good judge in South Africa should have a keen understanding of the separation of powers doctrine and the limits of judicial power. Such a judge should consider very carefully before making a decision that intrudes on the exercise of power by the other two branches of government. Judges who are tempted to use the judicial power to get back at the government of the day, for whom they never voted, may do more harm than good in the long run as their decisions may appear overtly political and may detract from the legitimacy of the courts.
Fourthly, a good judge will be courageous and fiercely independent and will not shy away from making unpopular decisions if such decisions are really required to uphold the Rule of Law and the fundamental values enshrined in the Constitution. Such a judge will be aware of the limits of her power, but will use that power to ensure that the rights enshrined in the Bill of Rights are interpreted and applied in such a manner that the vulnerable, the poor, the dispossessed and the politically weak are protected from abuse of power.
Lastly, in my opinion a good judge will have a specific vision of the new constitutional order that centres on social justice. Such a judge will be aware of the vast discrepancies between rich and poor and the harsh effects that formal rules can have on the lives of the poor and economically marginalised and will try and interpret the constitution and the ordinary rules of common law and the provisions of statutes in such a way that it would help facilitate the achievement of social justice.
Such a judge will be aware that traditional legal rules often favour the educated, the propertied classes and the powerful and – while adhering to precedent and while respecting the need to make legally plausible and legitimate decisions – will try to develop or interpret the tradition legal rules differently (with the help of the Bill of Rights) in order to make the law more just and fair in the long run.
From the above it must be clear that I would not support the appointment of a judge who harbours sexist, patriarchal or homophobic views or has a misplaced belief that everyone in South Africa really has the freedom to make all the important life choices that may affect their lives. I would prefer it if lawyers who are fixated on the notion of freedom of contract and the sanctity of property rights – no matter how negatively the application of such principles will affect the powerless and the poor – are not appointed to the bench at all.
In short, if I was on the JSC I would look at race and gender requirements along with requirements of competence. But I would not stop there. Just as important (or perhaps even more important) than all of the above would be a concern to appoint progressive, courageous and fiercely independent judges who care about social justice issues and care about the ways in which legal rules help to entrench or perpetuate social injustice.
When we talk about the transformation of the judiciary I have in mind the kind of transformation that goes much further than merely replacing white, sexist, homophobic capitalist judges with black, sexist, homophobic, capitalist judges. Sadly the JSC does not follow this view. Many judges have been appointed who hold shocking views on women and gay men and lesbians and feel that the law should not concern itself with social justice issues. Such judges are white and black, male and female. This is the real, but often unspoken, scandal underlying the appointment of judges in post apartheid South Africa.BACK TO TOP