21 September 2009

Johannesburg — EXPERIENCE was not the only factor the Judicial Service Commission (JSC) should consider in making appointments, chief justice- designate Sandile Ngcobo said in his interview before the JSC yesterday.

While a judicial candidate did not need to be an expert in certain areas of law, he must have the "capacity to grow," Ngcobo said. "Judicial temperament is the key."

What was, and what should be, considered by the commission when deciding who to recommend for appointment dominated yesterday's interviews for four Constitutional Court posts due to become vacant next month.

Candidates were quizzed on what weight the JSC should give to the constitutional injunction to consider racial and gender representivity and whether the constitution envisaged a "hierarchy" in which experience was primary and representivity was secondary.

Ngcobo said the JSC should also look for scholarship, experience, dignity, rationality, capacity for articulation, diligence, intellectual integrity, energy and courage -- "the ability to stand alone when the circumstances call for that".

Ngcobo said Constitutional Court judges came from different backgrounds.

"We learn from one another and we educate each other. That kind of representivity enriches us. Experience is not the only factor."

Candidates Eberhard Bertelsmann and Geoff Budlender said they believed demographic representivity was a constitutional imperative. But Bertelsmann said no matter how good a transformation candidate was, he would not be appointed without qualifications.

Budlender provoked the ire of a number of commissioners when he said it had been reported to him that one reason for him not being appointed previously to the Cape High Court was because the previous administration had been "angry" at his litigation for the roll- out of HIV treatment.

Budlender, interviewed three times to be a judge but never appointed, said he believed the approach of the previous administration had changed and that was why he was back before the JSC.

Commissioner Marumo Moerane said he found this assertion "astounding" because it implied that about 25 commissioners had been taking instructions from former president Thabo Mbeki 's administration.

Two others, who had been on the JSC at the time Budlender was not appointed, African National Congress (ANC) MP Cecil Burgess and Inkatha Freedom Party MP Koos van der Merwe, told Budlender that he was "operating under false information" and that had never been a factor.

Budlender said he had not referred to all commissioners or to any particular one. By the end of the interview, he said he regretted what he had said and apologised for "stepping on any toes".

He said that despite people who used his non-appointment to argue that white men should never stand for judicial office, he had never been a standard-bearer for disaffected whites and had never been critical of the JSC for failing to appoint him. He said he was simply trying to respond to a question as to why he was trying for appointment again.

Moerane also asked almost every candidate whether they had been one of the four people former Constitutional Court judge Johann Kriegler had persuaded to stay in the race, despite misgivings.

Bertelsmann and Budlender said no. Supreme Court of Appeal Judge Azhar Cachalia said he was uncomfortable with the question, saying to Moerane: "You cannot get at Kriegler through me." He said he had discussed his candidacy with Kriegler but in the context of a number of issues.

On how the JSC should make its appointments, Cachalia warned of the dangers of a numbers game. He said the Constitution wanted a competent judiciary and it wanted a nonracial, nonsexist judiciary. This did not mean the judiciary had to reflect every ethnic group in proportion, he said.

But ANC MP Ngoako Ramatlodi said "the national question" was not something to be treated lightly. As Africans were in the majority, the need to broadly reflect the population meant that the court would be majority African, he said.

Outgoing Chief Justice Pius Langa said his understanding of the approach was that good people should not stand back , but that it was for the JSC to decide what the constitution said it must do.

allafrica