Court action looms over Judicial Service Commission

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AN advocacy group is threatening to take legal action against the Judicial Service Commission (JSC) for bringing South Africa’s judiciary into disrepute.

Retired Constitutional Court Justice Johann Kriegler, chairman of the nonprofit organisation Freedom Under Law, said the resignation of Advocate Izak Smuts from the commission was casting a bad light on an institution that should be above petty squabbles.

Smuts resigned this week amid a public spat over the rejection of some candidates for appointment to the bench.

Kriegler said Freedom Under Law was still considering whether to approach the court to intervene in the matter. “It is always regrettable when the image of a public body that ought to enjoy the undivided support of the country is brought into question, but when the alternative is continued impairment of the rule of law, the choice is clear,” Kriegler said.

He added that Smuts’s resignation — and the reasons he had given for stepping down — meant that something was wrong with the way the commission did its work. “Who said what we don’t know. We then hear this person has decided to take his tool box and go home — he can no longer work on this job.

“That makes people concerned about the rule of law very uncomfortable, ” Kriegler said.

But the commission has defended its stance on transformation, arguing that appointing judges on the basis of experience and qualADVOCATE Izak Smuts, SC, is based in Grahamstown and obtained BA and LLB degrees in history and law from Rhodes University between 1974 and 1979.

The Eastern Cape-based advocate was seconded to the Judicial Service Commission in 2009 by the General Council of the Bar to represent the interests of advocates. He has since established himself as a fierce critic of attempts to rein in the judiciary.

Smuts, who specialises in commercial litigation, corporate law, mediation and arbitration, took on President Jacob Zuma following his announcement that government intended to review the judgments of the Constitutional Court.

In an opinion piece published in Business Day, he argued that the government was being badly advised.

“The excuse this time — that there is not unanimity in judgments from the highest court — reveals more about the ghastly legal advice to which our government is subjected than about the role of the courts. Established ifications alone was contrary to the provisions of the constitution.

JSC spokesman Dumisa Ntsebeza said the organisation was disappointed by Smuts’s public resignation.

He dismissed criticism by Smuts and other legal observers that the commission was overlooking experienced, qualified candidates for the judiciary.

“There should be an interpredemocracies do not expect unanimity from their highest courts — they expect honest engagement with the law, ” he wrote.

This year, he broke ranks with the General Council of the Bar, differing sharply with its stance on the controversial Legal Practice Bill, which proposes a major overhaul of the governance structure of the legal profession. He later stepped down as deputy chairman of the council.

Smuts is strongly opposed to the proposed law, saying it will erode the independence of the legal profession, whereas the council has welcomed and supports the bill.

“[ The bill] to me is anathema to the continued existence of an independent legal profession and, concomitantly, to the independence of the judiciary and the rule of law,” Smuts said when he resigned from the council in February. His departure from the Judicial Service Commission follows an internal document he wrote in which he criticised the commission for not recommending some white males who deserved appointment on merit. tation that is more nuanced than to say: ‘ OK, does he have a PhD or more [reported] judgment[s]?’ You may have qualifications, but do they speak to the principle of fit and proper?”

Smuts resigned after being rebuked by his fellow commissioners for leaking a document in which he had questioned the commission’s attitude to the appointment or promotion of white men.

He named Eastern Cape High Court Judge Clive Plasket and advocates Jeremy Gauntlett and Geoff Budlender as the “wasted forensic talent” that had been overlooked by the commission.

But Ntsebeza said a solid track record as a human rights lawyer did not automatically mean a candidate became a judge.

“Just because they were in the Legal Resources Centre or Lawyers for Human Rights gives them a sense that they are entitled. There are a whole lot of people who think like that. There is no one who is entitled to a recommendation for judicial appointment,” he said.

Fellow commissioner Koos van der Merwe said Smuts did not have enough appreciation of the constitutional requirement to transform the judiciary.

“I understand [Smuts’s] concerns, but maybe he is oversensitive in respect of section 174 [of the constitution],” Van der Merwe said. “He should have stayed on.”

After he resigned, Smuts said he differed from his colleagues to such an extent that it was untenable for him to continue serving on the JSC.

In a statement explaining his decision, Smuts said: “My understanding of the constitutional values, the constitutional role and duty of the commission — and even of basic rights such as those of human dignity and freedom of speech — is so far removed from the understanding of the majority of the commission that it is not possible for me to play an effective role on the commission.


Picture credit: Mail & Guardian

  • This article was published on Sunday Times.