The HSF's Challenge to the JSC - A Response to NADEL

The debate surrounding judicial transformation specifically and the legal profession generally is a complex one. It does no one any good that participants in it seek to spuriously attack each other, as National Association of Democratic Lawyers (NADEL) has recently done to the Helen Suzman Foundation (HSF).

In the reduced version of an article, originally carried in the Weekend Argus, Legalbrief Today reports that, based on its President's affidavit, NADEL, is unhappy with the HSF's impending litigation against the Judicial Service Commission (JSC) ("HSF didn't mention unsuccessful blacks - NADEL," Monday, 16 September 2013).

While the reduced version of the article fairly and accurately summarises the basis for the HSF's litigation, based on the reduced record, at least, it seems that NADEL's opposition to the HSF's litigation is as spurious as it is superficial.

The two interlocking bases of the attack seem to be: (a) that in its founding papers, the HSF did not mention any unsuccessful black candidates, but rather only seems to make much of the ‘JSC's failure to appoint a particular white male counsel who had unsuccessfully applied on a few occasions;’ and (b) that in making no reference to said unsuccessful black candidates, the HSF does not fully address all factors which need to be canvassed for the purposes of a meaningful debate about judicial selection and transformation (my words, not theirs).

Being an association of lawyers, one would presume that NADEL would properly understand the way in which a legal case must be crafted. It is not only constrained to being about a particular set of facts, it is also constrained by the fact that it must not be hypothetical, academic or amount to asking the court for legal advice. Typically, when a party approaches a court for relief, it does so based on a particular set of facts and is under no obligation to discuss every possibility, similar or dissimilar, to its own case that may have occurred.

That is why the HSF is constrained to utilising, only in reference, the case of Gauntlett SC. In its provision of reasons, the JSC blithely gives the single most egregious illustration of how the JSC misinterprets and misconstrues its constitutional powers regarding judicial appointment. That the JSC thinks ‘it would do violence to the Constitution’ for two white males to be appointed to the bench shows the JSC seems to believe in a soft quota approach for white male candidates. The HSF believes this to be constitutionally impermissible and it is a concern that the JSC must answer.

Importantly, the HSF asks for no relief in favour of Gauntlett, nor does it ask for the subsequently nominated / appointed persons to suffer any punitive order. The HSF is not concerned by the candidates' individual qualities but about the principle underpinning appointment.

As the HSF wrote earlier this year:

"The purpose of our action, thus, is to ensure that the JSC's decision-making process is consistent with the provisions of the Constitution. Although the HSF is challenging the lawfulness of a particular set of facts, it is hoped that clarity will be obtained in respect of the JSC's methodology in nominating and selecting candidates for judicial office."

Therefore NADEL's preoccupation with absence of unsuccessful black candidates from the HSF's founding papers can be seen as what it truly is: an attempt to deflect attention away from the substance of the HSF's concern. By focusing on this absence alone, in the absence of explaining the legal context of this litigation, to the uninformed reader, NADEL is successful as illustrating the HSF as a proponent of white privilege. Nothing could be further from the truth.

For if the names of unsuccessful black counsel were included, despite the rules of procedure which prevent the HSF from doing so, it does not follow then that the second part of the NADEL's complaint would be satisfied. For NADEL erroneously lumps both issues together when they are indeed quite separate. The HSF is not engaging in a holistic review of the legal profession, nor could it do so in the case that it is pleading. That it is not doing so, nor that it is able to, does not dilute the potency of its complaint: in the case of Mr Gauntlett, the JSC applied a soft quota and that is irrational, unlawful and unconstitutional.

If NADEL were truly concerned with judicial selection and transformation, as they profess to be, rather than attack the HSF on the questionable grounds they have chosen, they should bring those cases of unsuccessful black counsel for proper consideration, or at the very least, make argument that is of value.

Their mistake is to think of HSF's case in binary terms: that it is predicated on the factual matrix surrounding a white male does not mean that the cause of unsuccessful black counsel, who may be subject to a soft quota of a different kind, are mutually exclusive. If anything, these cases should be heard together, for in doing so, it allows the courts to properly guide the JSC on how to fulfil its constitutional obligations pertaining to judicial selection.

Due to the rules of litigation, the HSF cannot bring the cases of Mandisa Maya, Azhar Cachalia and Dikgang Moseneke, who are but three eminent black legal professionals who deserved elevation but were unsuccessful.

Now that NADEL has been admitted as amicus curiae, I look forward to them raising these and other cases. As an amicus, they have a far wider berth from which to launch argument and now they have the opportunity to explain why these black jurists, who not only stand up to but, in some cases, dwarf counsel from across the racial divide, were overlooked.

And I hope they can do so without resorting to the same crude reasoning employed by the JSC, that the only way black lawyers can be elevated is if we impose a soft quota. That is not only damaging to the merits of the ‘beneficiaries’ of the policy, it is damaging to all black legal professionals and their white counterparts as well.

Indeed, this case is one of paramount importance, and allows all those interested in judicial selection to make a meaningful contribution as to how the judiciary is composed. Considering the racialised history of this country, this opportunity is a crucial one when one contemplates the role that the judiciary plays as guardians of the Constitution. It would be better for NADEL to properly engage in this debate rather than seek to delegitimise the issues of the HSF on grounds that it can either aid with, or on grounds that have no legal bearing on the case at hand.  

- Kameel Premhid writes in his personal capacity and the opinions expressed are his own. He is a former intern at Helen Suzman Foundation. He is due to take a place at the University of Oxford as a Rhodes Scholar in September. This article first appeared on the Politics Web website

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