Court action looms over Judicial Service Commission

AN advocacy group is threatening to take legal action against the Judicial Service Commission (JSC) for bringing South Africa's judiciary into disrepute.

Retired Constitutional Court Justice Johann Kriegler, chairman of the nonprofit organisation Freedom Under Law, said the resignation of Advocate Izak Smuts from the commission was casting a bad light on an institution that should be above petty squabbles.

Smuts resigned this week amid a public spat over the rejection of some candidates for appointment to the bench.

Kriegler said Freedom Under Law was still considering whether to approach the court to intervene in the matter. "It is always regrettable when the image of a public body that ought to enjoy the undivided support of the country is brought into question, but when the alternative is continued impairment of the rule of law, the choice is clear," Kriegler said.

He added that Smuts's resignation - and the reasons he had given for stepping down - meant that something was wrong with the way the commission did its work. "Who said what we don't know. We then hear this person has decided to take his tool box and go home - he can no longer work on this job.

"That makes people concerned about the rule of law very uncomfortable," Kriegler said.

But the commission has defended its stance on transformation, arguing that appointing judges on the basis of experience and qualifications alone was contrary to the provisions of the constitution.

JSC spokesman Dumisa Ntsebeza said the organisation was disappointed by Smuts's public resignation.

He dismissed criticism by Smuts and other legal observers that the commission was overlooking experienced, qualified candidates for the judiciary.

"There should be an interpretation that is more nuanced than to say: 'OK, does he have a PhD or more [reported] judgment[s]?' You may have qualifications, but do they speak to the principle of fit and proper?"

Smuts resigned after being rebuked by his fellow commissioners for leaking a document in which he had questioned the commission's attitude to the appointment or promotion of white men.

He named Eastern Cape High Court Judge Clive Plasket and advocates Jeremy Gauntlett and Geoff Budlender as the "wasted forensic talent" that had been overlooked by the commission.

But Ntsebeza said a solid track record as a human rights lawyer did not automatically mean a candidate became a judge.

"Just because they were in the Legal Resources Centre or Lawyers for Human Rights gives them a sense that they are entitled. There are a whole lot of people who think like that. There is no one who is entitled to a recommendation for judicial appointment," he said.

Fellow commissioner Koos van der Merwe said Smuts did not have enough appreciation of the constitutional requirement to transform the judiciary.

"I understand [Smuts's] concerns, but maybe he is oversensitive in respect of section 174 [of the constitution]," Van der Merwe said. "He should have stayed on."

After he resigned, Smuts said he differed from his colleagues to such an extent that it was untenable for him to continue serving on the JSC.

In a statement explaining his decision, Smuts said: "My understanding of the constitutional values, the constitutional role and duty of the commission - and even of basic rights such as those of human dignity and freedom of speech - is so far removed from the understanding of the majority of the commission that it is not possible for me to play an effective role on the commission.

"The time has come for someone else to try to succeed where I have spectacularly failed."