Merit must trump race, says judge

10 April 2013 - 02:25 By THABO MOKONE
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A war of words erupted at the Judicial Service Commission yesterday after a senior judge argued that merit should trump gender and race as considerations for appointment to the bench.

Eastern Cape High Court judge Clive Plasket, one of three candidates vying for two seats in the Supreme Court of Appeal, crossed swords with commissioners, including Justice Minister Jeff Radebe, who said his approach would set back efforts to transform the judiciary.

Plasket, a human rights lawyer since the 1980s who defended many political detainees, faced a barrage of questions from commissioner Dumisa Ntsebeza over the principle of appointing experienced white male judges over less experienced black women.

Plasket said gender considerations should not be used to sideline experienced white men.

"The fact that the one candidate is female, I would suggest, isn't good enough to trump merit . it becomes a lot trickier when the merit gap is a lot closer."

He said in instances in which a white male judge had 70 published judgments while a black female judge had six unpublished judgments, the appointment of the white male would be completely justified.

Plasket's comments follow a report penned by commissioner Izak Smuts accusing the JSC of interviewing white men only as a formality, with no intention of recommending them as judges.

"If the majority view is that . white male candidates are to be considered for appointment in only exceptional circumstances, the JSC should, at the very least, come clean and say so, so that white male candidates are not put through the charade of an interview before being rejected," he wrote.

His report was to be discussed by the commission behind closed doors.

Retired Constitutional Court judge Zak Yacoob recently said the judicial appointment process was "flawed" and too subjective.

And the Supreme Court of Appeal has ruled that the JSC was "irrational" when it decided in 2011 to leave two spots on the Western Cape High Court bench vacant even though four white senior lawyers had made themselves available for the posts.

One of them was the highly regarded Jeremy Gauntlett SC, whom the JSC has rejected for the bench four times, twice for the high court and twice for the Constitutional Court.

Plasket said yesterday he did not understand why the commission would not recommend the appointment of a white male judge even if the only candidates that availed themselves for seats on the bench were white.

"If we take one step back and we postulate this, that the JSC advertises for those positions and says at the bottom of the advert 'white males need not apply, you will not be appointed', I have no doubt that would become the subject of a [court] challenge and would be found wanting .

"Once you find yourself with only white male candidates, I can't see any basis upon which you can refuse to appoint a suitably qualified person," said Plasket.

Chief Justice Mogoeng Mogoeng interjected, saying appointing only experienced white men to the bench would set back transformation: "When then are we ever going to transform the judiciary, if we are committed to it?"

Plasket retorted by saying failing to fill vacancies simply because "the wrong race" had applied would have a detrimental effect on the administration of justice.

"I can imagine that the imperative of the administration of justice also kicks in."

Plasket told commissioners that most of the questions he had been asked during his two-hour interview were not relevant to his work.

"I realise that most of the questions that I faced today have had very little to do with my competence as a judge. They've been on other issues."

This did not go down well with minister Radebe, who asked: "If a potential candidate is being asked his views about a particular judgment, how is that irrelevant?"

Plasket is contesting Johannesburg High Court Judge Nigel Willis and Judge Halima Salduker, an acting judge in the appeal court.

Salduker, who has been tipped for appointment, was surprised when Supreme Court of Appeal President Lex Mpati suggested there was resistance to her permanent appointment as a judge of the court.

The JSC will this week interview hopefuls for positions at the Electoral Court, the Competition Appeal Court and several high courts.

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