If the JSC is bypassed and replaced by judges themselves it could imply a scenario in which judges are seen to perpetuate their views and interpretations of the law, and the Constitution itself.
Stephen Grootes, the host of the Midday Report on Talk Radio 702 and 567 Cape Talk wrote an article Seems to be no way out of constitutional cul-de-sac that was first published in Business Day on 14 November and these are random extracts.
THE request by retired Supreme Court of Appeal deputy judge president Louis Harms for more “clarity” from the Judicial Service Commission on the reasons it decided against selecting Adv Jeremy Gauntlett as a judge, and the possibility that legal action may follow, could once again see our justice system lurch into new waters.
These implications could include a situation in which the constitutionally mandated body to select judges is bypassed, and replaced by judges themselves. The implications for democracy could be claimed to include a scenario in which judges are seen to perpetuate their views and interpretations of the law, and the Constitution itself.
The issue of Adv Gauntlett’s nonselection, despite the JSC’s admission he was “able”, has long been contentious. He has acted as a judge in many courts outside South Africa, and the decision not to select him for the Constitutional bench in 2009 led several appeal court judges, who had worked with him in Swaziland and Lesotho, taking the unprecedented step of making their displeasure public. In the view of retired Constitutional Court Judge Johann Kriegler, Adv Gauntlett is the “best, or in at least the top three lawyers, not just in this country, but in any common law country.”
Should this case go to court, in effect a judge will be asked to decide whether Adv Gauntlett should then become a judge himself.
This would have implications for how the judiciary would look, not just from a demographic point of view, but also from a way-of-thinking viewpoint. As the law evolves in democracies, judiciaries tend to evolve with it. While judges are generally appointed for lengthy periods, or for life in some cases, turnover still occurs. This means the outlook of the judiciary also changes over time. It is hard to think that the majority of our judges now would believe in the death penalty, even if it were legal, while that may not have been the case in the 1980s. For a democracy that is changing, it is unlikely to be a situation considered desirable for judges to choose their successors.
If Judge Harms goes ahead with his case, a judge would have the duty of making a decision. The JSC would be bound by that decision, even if it decided to appeal. This would mean the Constitutional Court would have the final say. It is possible the Constitutional Court could decide the JSC should make the final call, but this would make the JSC unaccountable to the courts, which would have implications of its own.