JSC has introduced novel criterion for bench

13 Nov 2012 | Tony Leon | Original Publication: BDlive

I can attest to remarkable jurists who profoundly lacked humility, this apparently now essential quality, writes Tony Leon

INVERTING Groucho Marx’s aphorism "I don’t want to belong to any club that will have me as a member", Jeremy Gauntlett is about to launch a fifth application for membership of the South African bench, having been spurned by the Judicial Service Commission (JSC) on four previous attempts.

Perseverance is a judicial quality. Likewise consistency; something possessed in spades by Gauntlett’s nominator for the looming Constitutional Court vacancy, Sir Sydney Kentridge QC, arguably the most distinguished living advocate in both the UK and South Africa. Back in September 1987, in a speech reflecting on decades of judicial gerrymandering by the National Party (NP) government, Kentridge stated "the fact is that when judges are selected on any grounds other than ability, judicial standards must fall".

Thus the more things change, the more they stay the same. On the subject of which, there is one crumb of comfort provided for those dismayed at some of the nominations approved by the JSC. Back in the 1930s, South Africa’s Nazi-admiring justice minister Oswald Pirow noted with disgust: "The problem with political appointees to the bench is that six months after their appointment, they assume they were appointed on merit!"

Still, we must thank the JSC for introducing a novel criterion for the bench. In advancing a reason for Gauntlett’s latest rejection, it cites his lack of "humility". Having grown up in a judicial household, I can attest to some remarkable jurists who profoundly lacked this apparently now essential quality. Two of the great judges of the Natal Provincial Division, John Didcott and Anton Mostert, whose judgments and actions did much to upend the apartheid legal order, were, to put it at its politest, possessed of volcanic tempers and degrees of irascibility. The same is certainly true, both in terms of his personality and legal ability, of the first chief justice selected by the JSC in 1996, Ismail Mahomed, whose mercurial personal constitution was matched only by his respect for the national one. Apparently back then, the JSC did not consider "modesty" an essential attribute for the highest judicial office.

When reviewing Hermann Giliomee’s riveting new work, The Last Afrikaner Leaders, I was reminded of my own role, in the dying hours of the 1993 constitutional negotiations at Kempton Park, in cobbling together a compromise we called the JSC. Early on in the negotiations, my party’s suggestion that judges be appointed by a JSC was accepted, except for the most powerful division, the Constitutional Court. This matter was left over for a "bosberaad", as we then called the "lekgotla", to be convened by the NP and the African National Congress (ANC). In the week before the final days of Kempton Park, I received a phone call from then justice minister Kobie Coetsee. He told me he had just signed an agreement with his ANC opposite number, Dullah Omar, which he was faxing to me. He thoughtfully suggested that "you might want to sound the alarm!" Extraordinary, but true: the man who had just agreed to an ANC proposal to assign the power to appoint Constitutional Court judges to the president and the Cabinet, now wanted an opposition politician to blow the whistle on his agreement. I duly obliged, and after a lot of inelegant elbow twisting, literally at five minutes to midnight on the final night of the negotiations, we agreed that all judges would be appointed by the JSC.

In the 19 years since then, the JSC, intended as a bulwark against political meddling in judicial appointments, for the very reason advanced by Kentridge in his 1987 speech, has seen an inflation of politicians as members and the strong suggestion that a majority party caucus operates informally within it. It has also made it plain that racial demographics is the highest premium in its appointments, although it was only one of several criteria the constitution envisaged.

Excluding and sideling talent, however temperamental and whatever its racial origin, is not what winning nations do. Last week in Johannesburg, I had an interesting encounter with Shaun Liebenberg, the man who once turned Denel around before he left South Africa to head a major multinational in Germany for four years. I congratulated him on his decision to return recently to head up the private equity arm of a Johannesburg consulting company. He then told me a riveting statistic: there are, by his estimation, "over 30,000 South African engineers, pilots, doctors, dentists and technicians currently living and working in the United Arab Emirates".

Doubtless, many of them enjoy earning tax-free dollars, or the shopping centres or even the desert air. But doubtless if we acted on the fact that South Africa has produced some of the finest home-grown talent in the world, some of them would return to help build our country anew.

The admirable diagnostic of the National Planning Commission points in this direction. It states that "successful countries have a future orientation". Amen to that.

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