Grahamstown-based advocate Izak Smuts has resigned from the Judicial Service Commission (JSC) after heated debate on the topic of transformation and the appointment of two positions on the Supreme Court of Appeal (SCA) in Cape Town last week.
Grahamstown-based advocate Izak Smuts has resigned from the Judicial Service Commission (JSC) after heated debate on the topic of transformation and the appointment of two positions on the Supreme Court of Appeal (SCA) in Cape Town last week.
Smuts was asked by the JSC to lead an internal discussion on transformation within the commission.
Documentation was leaked to the media earlier this month, leading to rigorous discussion that spilled over into an interview for a position in the appellate court.
Judge Clive Plasket, also from the Eastern Cape, was questioned about his position on transformation for just under two hours, even though he was being interviewed for a position on the SCA.
Smuts feels Plasket was targeted because of his reputation for independent thinking and previous cases he had presided over in which he ruled against the government.
“He was treated very unfairly,” Smuts said. “I don't think it's a secret that there is unhappiness in government about the fact that the Bench corrects them when they behave unconstitutionally.”
He pointed out that the two other High Court judges under review for the positions – they have subsequently been recommended for appointment – were not subjected to the same rigorous questioning.
Halima Saldulker was asked about it superficially, and the topic was not even broached in Nigel Willis's 40-minute interview – although he did joke about his previous differences with the Constitutional Court.
“If it was such an important element of what makes a judge suitable or unsuitable for appointment, they can't justify discussing it to such an extent with only one of the candidates,” Smuts argued.
“They behaved arbitrarily, and therefore irrationally.”
In a scathing media statement announcing his resignation from the JSC, Smuts refers to the commission's tarnished reputation and “disturbing” history: it has been involved repeatedly in unsuccessful litigation about the way in which it conducts its affairs.
He highlighted a common perception about the Commission's bias against appointing suitable white male candidates to the bench.
He called their position unconstitutional and urged them to “come clean” about their appointment practices.
“The Commission is informed by the Constitution,” he explained.
Explicit provisions regarding the role and responsibilities of the commission are laid out there.
“The word 'transformation' is not used anywhere,” Smuts said. “In the discussion document, I suggested caution in attributing such a politically-loaded role to the Commission when their role is already clearly defined by the Constitution – it is then opened up to subjective interpretation.”
“The duty of our courts is not only to resolve differences, but also to make judgments that indicate what is right and wrong for the rest of us,” he said, explaining the call for “intellectual leadership” in his statement.
“It's not just about sex and race: it is much more nuanced than that,” he said. “It's not just white males who are being chased away, but many intellectual, independent-thinking candidates whose talents are being wasted.”
He said the JSC has missed the opportunity to shape the debate around transformation in its unwillingness to discuss it openly, and it was now in the hands of the public.
Unlike promotions in the business world, judicial appointments affect justice and fairness for many people. Smuts feels that the JSC should be making appointments based on merit only.
“There are litigants of all races and both sexes that come to court for justice and equality – they deserve the best possible judgments,” Smuts said.
