The Constitution provides for certain criteria for the appointment of judges: First, section 174(1) determines that “Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen”. Secondly, section 174(2) provides that “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. In addition, section 174(6) determines that “The President must appoint the judges of all other courts on advice if the Judicial Service Commission”. Although the Constitution requires the judiciary to be representative in general, the JSC’s interpretation of section 174(2) has resulted in the Commission putting too much emphasis on “transforming” the judiciary and its mindset and not enough on appointing the most appropriate and suitable candidates as judges as required by section 174(1). In this regard, the CFCR had previously, as amicus curiae in both Cape Bar Council v the Judicial Service Commission and Another and the subsequent appeal, argued that the JSC’s interpretation of sections 174(1) and 174(2) – and in particular the weight it attached to the provisions of section 174(2) – was wrong.

In context of the Rule of Law and the wording of section 174(1) and 174(2), the latter is clearly subordinate to section 174(1). Thus, race and gender are not in itself qualifying or disqualifying criteria for the appointment of an appropriately qualified, fit and proper person as a judge. The JSC seems to differ – at the expense of qualified, highly experienced and knowledgeable candidates, sometimes regardless of their race or gender. This begs the legitimate question: Which criteria are the JSC then using to recommend candidates for appointment as judges?

The judiciary must undoubtedly reflect the racial and gender composition of our society in general, and the JSC should strive to reflect society’s ambition to achieve such real equality. However, the Constitution does not require the judiciary to reflect the demography of South Africa by numbers and it does not grant the JSC the powers to pursue such composition. Unless the provisions of section 174(1) remain the overriding criteria for the appointment of judges, we may end up, at best, with a judiciary deprived of experience, knowledge and understanding of the law, and at worst, with a judiciary lacking independence of mind. The sooner a court – and ultimately the Constitutional Court – clarifies this very important matter, the better.

By Adv Johan Kruger, Director: Centre for Constitutional Rights