LISTEN | Judge Rogers makes his views known about representivity in apex court

The last candidate to be interviewed for a vacancy in the Constitutional Court, judge Owen Rogers, said on Tuesday he thinks the court of 11 justices is too small and too important to allow anything along the lines of a quota to determine who is part of it.

Rogers, who is a judge in the Western Cape High Court, and four other candidates were interviewed by the Judicial Service Commission (JSC) for two vacancies in the apex court.

Listen to the response: 

Rogers was responding to a question from a commissioner about the constitution, which states that the need for the judiciary to reflect broadly the racial and gender composition of SA must be considered when judicial officers are appointed.

The highest court in the land is composed of eight permanent black judges, including three women.

“Judicial excellence, coupled with the commitment to constitutional values, should be the most important criteria,” Rogers said.

When chief justice Raymond Zondo asked for clarity, Rogers said he was not suggesting there should be more than 11 judges.

“What I was indicating was a personal view, but recognising this was a policy decision for others to make. In a court where there are only 11 people, the ability to get a broad representivity is compromised because you only have 11 positions to work with and you are working with a court ... where I do not think people would generally disagree that you would want your best judges in that court,” Rogers said.

Rogers spoke about how he reacted to being invited to act in the ConCourt.

“I came to the view that not only was it an honour to be invited, but I should try it out to see how I experience life in the ConCourt, if only for two terms.”

He said he did not feel out of his depth in matters that were constitutional or public law.

“I saw there were important contributions which a general lawyer could make, and which I think I had made during my acting stint,” Rogers said.

Following deliberations on Tuesday evening, the JSC announced it will present a list of four nominees to President Cyril Ramaphosa for a single position.

They are Alan Dodson SC, judge Fayeeza Kathree-Setiloane, judge Mahube Molemela and Rogers.

Of the five candidates interviewed, judge David Unterhalter was not recommended for appointment.

According to the constitution, the JSC needs to present to the president a list of nominees with three more names than the number of appointments to be made. The president then makes an appointment from the list.

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