According to SA's new chief justice, Sandile Ngcobo, judicial temperament is a key attribute for aspiring judges.
Addressing the Judicial Service Commission (JSC) in September, Ngcobo added scholarship, experience, dignity, rationality, capacity for articulation, diligence, intellectual integrity, energy and courage to the list.
A long list of noble virtues and high standards indeed - but now Ngcobo, as the new chairman of the JSC, will need in practice to identify these qualities in candidates interviewed for the bench.
The debate around the criteria used for selecting candidates has been going on for more than a decade, but it recently gained momentum following the JSC's September interviews to fill four vacancies on the constitutional court.
SA's constitution is clear about the principles of judicial independence and the separation of powers, but it offers little in the way of a job description for judges.
According to section 174 (1) of the constitution, anyone who is "appropriately qualified" and is a "fit and proper person" may be appointed as a judge. Section 174 (2) further specifies the "need for the judiciary to reflect broadly the racial and gender composition of SA".
The constitution does not, however, give any direction on what criteria should be applied when assessing the competence of candidates, and allows the JSC to set its own procedures.
Milton Seligson SC, an advocate at the Cape bar and a former member of the JSC (he recently resigned after serving for over 10 years), tells of a 1998 meeting of the JSC. The late chief justice Ismail Mohamed observed that though the gender and racial composition of the bench was an important criterion, it could not be the only one. At that meeting a set of guidelines was formulated, and it has been generally applied by the JSC.
Together with academic qualifications, Seligson says, about six broad issues were factored into the deliberations when considering candidates for the bench. These included:
- Whether the person had the necessary motivation and energy;
- Competence, technically as a lawyer as well as regarding the capacity to give expression to the values of the constitution;
- Whether the appointment sends a symbolic message to the community.
But Seligson acknowledges that there have been differences among JSC members over the relative weight to be afforded to different criteria.
"It cannot be denied that the JSC has done a great deal to enhance representivity' on the bench through its appointment of transformation candidates, but it has not always been successful in finding candidates whose technical competence and experience match their transformation credentials," says Seligson. "The lack of a sufficient pool of qualified persons from disadvantaged backgrounds has proved a stumbling block."
Since 1994, the pool of candidates from which judges are appointed has been widened to include not only senior members of the bar but also practising attorneys, magistrates and academics.
The JSC calls for nominations whenever a vacancy occurs; candidates are then interviewed, after which recommendations are made to the president.
The interviews are public, but the deliberations of the JSC are confidential. Critics argue that this compromises the process, but the JSC maintains it is necessary to protect candidates, especially those who are unsuccessful.
Last year, appeal court judge Carol Lewis drew criticism when she suggested that the appointment of inexperienced judges had compromised the quality of judgments by the high court.
According to Susannah Cowen, an advocate who is also senior research associate at the democratic governance and rights unit at the University of Cape Town, when the term appropriately qualified' is considered, it tends in the SA context to be given a broad interpretation that includes not only academic qualifications but also skill and experience.
Cowen says that though it may well now be valid to appoint a candidate with less relevant experience but good potential, one should be cautious. There has to be clarity about how potential is evaluated, and it should be backed with appropriate training or support.
"Though various judicial training initiatives are under way in SA, we still remain heavily reliant on experience as the primary means of acquiring the relevant skills," says Cowen. "As for current practice, though there is an important debate about whether the JSC and the president are appointing sufficiently experienced judges, it is clear that the JSC's processes are intended to assess not only candidates' qualifications but also the adequacy of their experience."
Cowen is working on a research paper on judicial selection, and has come up with a list of five qualities she believes give content to what makes a "fit and proper" judge (see box).
Though the JSC has never really spelt out what level of experience and skills it considers sufficient, previously, when candidates were drawn only from the bar, the rule of thumb was that advocates should have practised for at least 15 years before taking silk as senior counsel.
Seligson says an important requirement the JSC has developed is that applicants for appointment to the high court also must have acted satisfactorily as a judge of that court.
He does, however, concede that some of the criteria used by the JSC are "simply incapable of objective application" and that commissioners often arrive at differing, subjective assessments.
"I would say that the time has arrived to utilise more scientific methods, criteria and guidelines in evaluating candidacy for the judiciary," says Seligson. "Such a project is more likely to lead to a balanced selection process that continues to give effect to transformation, while recognising that competence, diligence and integrity are also indispensable."
Cowen believes there is an important debate to be had about race and transformation, which should include the question of whether section 174 (2) has been well crafted. She says that though striving for representivity serves the objectives of achieving legitimacy and remedying historical injustice, the section is fraught with difficulties.
"It is difficult to interpret the section consistently with the foundational constitutional value of non racialism into the future, and the section distracts selectors from a richer debate about diversity that celebrates the plurality of SA cultural and religious society," says Cowen. "Even more troubling, some interpret the section to mean - quite erroneously - that we can expect to be judged by a person of our own race."
When applying this section, Cowen says, judicial selectors need at the very least to devise a respectful way "to understand our identities, race being only one facet, [a way] that breaks sharply with the past while acknowledging how history has shaped them. That in turn must be reflected in how candidates are questioned and how public debates in the JSC ensue."
Despite the careful language and modulated tone of the debate, race continues to be the uneasy and often unspoken issue that underpins the discourse.
