CHRIS OXTOBY: JSC appointments not black and white

Controversy about judicial appointments in SA is not new, and it has often revolved around the race (and, to some extent, gender) of the candidate. The issue has again raised its head after last week’s decision by the Judicial Service Commission (JSC) not to list judge David Unterhalter or advocate Alan Dodson as candidates for appointment to the Constitutional Court.

Much of the public debate has attributed the exclusion of Unterhalter and Dodson to the fact that they’re white men, prompting a fresh debate about the appointment of white men to the judiciary.

We’ve been here before. The JSC’s repeated refusal to recommend advocate Jeremy Gauntlett for judicial appointment caused outrage a decade or so ago. In 2013, a JSC commissioner resigned after challenging the commission to have an "honest debate" to "deal with the uncomfortable perception that the graffiti on its wall reads: ‘White men can’t judge.’"

The issue is nuanced, so reducing it to a matter of race risks misdiagnosing the problem.

Several white men were recommended for appointment to the Gauteng, Eastern Cape and Mpumalanga high courts following the JSC interviews. But is there something about the Constitutional Court vacancies that closes the door to white male candidates?

Dodson is a highly regarded lawyer, with a demonstrable and impressive record in land reform matters, as shown by his previous judicial experience on the Land Claims Court. But he’s not a sitting judge, and it doesn’t seem completely unreasonable for the JSC to prefer candidates who are on the bench.

Few would dispute that Unterhalter is a leading lawyer in SA, and it’s certainly surprising that he wasn’t on the list. Ostensible reasons include his membership of the SA Jewish Board of Deputies (from which he resigned before the April interviews), and the fact that he’s only been a high court judge for about three years. Not directly mentioned in the interviews was his role as counsel for President Cyril Ramaphosa at the Marikana commission of inquiry.

So there are reasons at play in the non-appointment of Dodson and Unterhalter that are not necessarily related to race and gender — even if they are not overly convincing.

It’s also not the case that there were no other good candidates available. Several strong, credible candidates are on the list sent to Ramaphosa — though some have raised eyebrows.

It is true that after the retirement of justices Edwin Cameron and Johan Froneman, there are no white judges among the permanent judges of the Constitutional Court at present. But this cannot mean that another white man should automatically be appointed to replace them.

The constitution requires that the need for the judiciary to "reflect broadly" the racial and gender composition of SA "must be considered" when judges are appointed. This suggests that, rather than the demographics of the court tracking the demographics of SA exactly, a flexible approach is envisioned that takes into account factors such as expertise, experience and diversity of life experience and professional background.

This kind of approach to transformation doesn’t mean white male candidates should be appointed merely because there are no other such judges in a particular court. Equally, a white male candidate who is exceptional should be eligible for appointment even if there is already a white man serving on the bench.

Refocusing the discussion

The debate further illustrates why so many commentators have said the JSC needs to articulate more fully the criteria it applies in recommending candidates for appointment.

If, for example, the JSC wishes to take the approach that there is a minimum period in which candidates must serve at high court level before they are eligible for elevation to the apex courts, it should state this openly.

Without such clarity, we’ll continue returning to this narrow debate about whether white men are in or out, based only on demographics. It’s a position that does no favours to the candidates — or to the JSC itself.

Oxtoby is a senior researcher in the democratic governance & rights unit at the University of Cape Town