Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
22 April 2010

On judicial appointments

The Judicial Services Commission (JSC) has now announced the names of the most recent successful candidates for appointment to various High Courts and the Labour Court. There has been some criticism of these appointments, most notably because of the non-appointment of Adv Jeremy Gauntlett and – to a lesser extent – Adv Glen Goosen and the promotion of Judge Willem van der Merwe to Deputy Judge President of the Gauteng High Court.

I do not agree with all the criticism leveled at the JSC, although I suspect some good candidates might not have been appointed. Nevertheless, at this point it might be helpful to take stock and to evaluate the performance of the JSC.

The first striking feature of the appointments is that several white men were appointed to the various High Courts. This underscores the fact that it is a myth that “white men need not apply” for positions on the bench. All three judges appointed to the Labour Court are white men and two of the five appointments to the Gauteng High Court are also white men. Judge Willem van der Merwe was promoted to Deputy Judge President despite the fact that he is a white man.

Although members of the JSC asked pertinent questions about the need for the racial and gender transformation of the bench (questions that are perfectly relevant), the majority of members clearly do not believe that race and gender are the only criteria to be used when deciding on appointments. This view is correct and perfectly in line with the Constitution.

Second, I might be wrong, but I see a trend emerging regarding the appointment of white lawyers to the bench. The majority of members on the JSC seem reluctant to give the nod to progressive white lawyers. Although Judge Dennis Davis was said to have had by far the best interview before the JSC when it had to consider appointments to the Constitutional Court, he was not appointed. Davis was an energetic and tireless progressive (as opposed to liberal) campaigner against apartheid and has handed down many progressive judgments as a member of the Cape High Court.

Similarly Adv Glen Goosen, who was an anti-apartheid activist and worked for the Truth and Reconciliation Commission and has a well-earned reputation as a progressive lawyer, was overlooked by the JSC in the most recent round of appointments. Previously the JSC had also declined to appoint Adv Jeff Budlender, one of the most brilliant progressive lawyers in South Africa. Budlender had been involved in several social and economic rights cases and was active in progressive anti-apartheid politics during the struggle against apartheid.

If I am correct, it would suggest that the JSC is more comfortable with the appointment of pro-establishment white lawyers who might not have been active in anti-apartheid struggles than with the appointment of more critical lawyers. Could this be because progressive white lawyers are perceived to be too critical and too prepared to intervene on behalf of the vulnerable, the poor and the voiceless? Are candidates being appointed who are perceived to be traditionally conservative about gender issues and issues of social justice because they would be less likely to hand down progressive judgments that would embarrass the government?

Third, it is unfair to criticize the appointment of Judge Willem van der Merwe as Deputy Judge President of the Gauteng High Court on the basis that he acquitted President Jacob Zuma on the charge of rape. It is unfair to Judge van der Merwe, who clearly based his decision on the facts presented to the court and on the law. The argument that he was “rewarded” for acquitting Zuma does no one any favors and is wrong.

Hopefully no one is implying that Van der Merwe acquitted Zuma to further his own career. Most observers agree that Judge Van der Merwe came to the correct decision when he acquitted Zuma and he should surely not be penalized merely because in applying the law without fear favor or prejudice he happened to have acquitted the President on the charge of rape.

Having said that, the appointment of Judge van der Merwe could be criticized on different grounds. Feminists and gender activists criticized Van der Merwe for allowing the defense in the Zuma case to question the complainant on her sexual history. The judgment deals with these arguments and makes a plausible case for the decision. Nevertheless, given the fact that the transformation of the judiciary also requires the JSC to appoint non-racist, non-sexist and non-homophobic judges, it would have been better if the members of the JSC had quizzed Van der Merwe vigorously about his commitment to gender equality.

I have no idea whether Van der Merwe is a closet feminist or whether he harbors stereotypical views of women and express no opinion about it. However it surely is the role of the JSC to try and find out. In the same way that it is allowed to ask questions of candidates about their commitment to racial equality, the JSC is allowed to quiz judges on their social attitudes towards women.

Lastly, in discussing the appointment of judges it is important to take a nuanced view and not to jump to conclusions. At the same time this does not mean the JSC should get a free pass and that we should not criticize it when it overlooks a particular individual who has the legal skills, the temperament and the social justice credentials to advance broader transformation goals.

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