Section 174 of the Constitution – the appointment of judicial officers

Section 174 (1) states that ‘[a]ny appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer.’ Section 174(2) states that ‘[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’ These constitutional provisions deal expressly with the criteria for the appointment of judicial officers. Of late, these requirements, or more specifically the application of these requirements has come under severe scrutiny.

Most recently, both the Amos^[1] case and the Lawrence case[2] scrutinized the criteria considered when seeking to appoint magistrates.
In the Amos case, the Applicant contended that he had been subjected to unfair treatment at the hands of the Magistrates Commission, who failed to appoint him because he was a white man. The High Court reviewed the case and set aside the recommendation for appointment by the Magistrates Commission, which had excluded the applicant because he was a white man.
In the Lawrence case, the Applicant contested the shortlisting proceedings undertaken by the Magistrates Commission and sought that the proceedings be reviewed and set aside. The Applicant also contended that he was not considered for shortlisting solely because he was a white man. The High Court reviewed and set aside the shortlist of the Magistrates Commission, and declared the shortlisting proceedings unlawful and unconstitutional.
From these two cases it is clear that the provisions of section 174(2) are not to be considered in isolation when seeking to appoint judicial officers, magistrates, and judges.

Section 174(1) of the Constitution

Two essential criteria appear from the provisions of section 174(1), that being

1. a person must be ‘appropriately qualified’ and
2. a person must be ‘fit and proper’ to be a judicial officer.’^[3]

The meaning of the content of these criteria should be sourced from the Constitution itself, ‘and more particularly from consideration of the nature of the judicial function and the powers that vest in judges.’^[4]
Most fundamental are the provisions of section 165(2) which require that the judiciary be independent, must protect the Constitution, must uphold rights, and must apply the law impartially, and without fear, favour, or prejudice.

What is meant by ‘an appropriately qualified person’?

‘The term “appropriately qualified” raises various interpretive questions. Firstly, what is meant by “qualified”? Does it refer narrowly to the completion of a tertiary degree in law? Then-President of the Supreme Court of Appeal, Mpati P commented, though the requirement of “suitably qualified”, is not defined, ‘it cannot be interpreted as being a reference to academic qualifications only. Legal knowledge and experience must form part of that requirement.’[5]  A broader interpretation is probably the correct one, referring not only to an academic legal qualification but also to skill and experience that “makes a person suitable for (the) particular position or task (of judging)”.’^[6]

“the fact that a candidate has experience of a relevant sort is not enough… It must be inquired whether the candidate possesses the relevant skills in adequate measure…. It cannot be assumed that the definition of merit in the past, is what is good in the present or in the future.”

Further, the fact that a candidate has experience of a relevant sort is not enough. It must be inquired whether the candidate possesses the relevant skills in adequate measure.

It is this inquiry that requires that it be ascertained, what are the specific needs and challenges of the South African judiciary, legal profession and litigants, at a given time. It cannot be assumed that the definition of merit in the past, is what is good in the present or in the future.

What is meant by ‘fit and proper’?

“A person must be ‘fit and proper’ to be a judicial officer.” ‘There is no “correct” way to categorize those qualities that relate to fitness and propriety for judicial office.’^[7] Be that as it may, five categories have been identified, which are:

1) Independence

2) impartiality and fairness

3) integrity

4) judicial temperament; and

5) commitment to constitutional values.

First, a fit and proper judicial officer must embody independent mindedness. A fit and proper candidate for judicial office must also be a person who has the courage and disposition to maintain an independence of mind in the performance of judicial duties. Independent mindedness is a quality displayed both in response to external pressure, whether from political, commercial, or private interests, and internal desires and beliefs?

Independent mindedness is a quality displayed both in response to external pressure, whether from political, commercial, or private interests, and internal desires and beliefs?

Second, a fit and proper judicial officer must embody fairness and impartiality. Courts are obliged to adjudicate between competing rights and interests. Impartial judgement, without fear, favour or prejudice is critical. Fit and proper judicial officers must not only act independently, but must also be able to act fairly and impartially. A disposition towards fairness and impartiality is an essential quality for judicial officers derived directly from the Constitution.

Third, a fit and proper judicial officer must embody judicial integrity. The standards of judicial integrity are articulated in the, Norms and Standards for the Performance of Judicial Functions, the Code of Judicial Conduct for Magistrates in terms of section 16(1) of the Magistrates Act, 1993 and the Code of Judicial Conduct adopted in terms of section 12 of the Judicial Service Commission Act, 1994. These standards include, amongst others, that a judicial officer must uphold the independence and integrity of the judiciary and the authority of the courts, a judicial officer must always, and not only in the discharge of official duties, always act honourably and in a manner befitting the judicial office. A judicial officer must personally avoid and dissociate himself or herself from comments that are racist, sexist or otherwise manifest discrimination in violation of the right to equality guaranteed by the Constitution.

… a judicial officer must always, and not only in the discharge of official duties, always, act honourably and in a manner befitting the office.

Fourth, a fit and proper judicial officer must embody judicial temperament. Judicial temperament refers to the manner of thinking, behaving, or reacting expected of a judicial officer. In terms of the Norms and Standards, judicial officers must embody courtesy and patience towards litigants, witnesses, lawyers, and others with whom they deal with in an official capacity. Although judicial officers are required to embody judicial temperament, they are also still expected to be both thorough and decisive in their role as judicial officers.

Lastly, a fit and proper judicial officer must embody commitment to constitutional values. The values underlying the Constitution are expressed in section 1 of the Constitution, and include human dignity, equality, the advancement of human rights and freedoms, and non-racialism and non-sexism.

SECTION 174(2) OF THE CONSTITUTION

The judicial selection process requires careful analysis. This analysis should consider three notionally distinct though overlapping constitutional objectives or requirements, namely: non-discrimination, diversity and the requirement of race and gender representivity.

What is meant by ‘diversity’?

‘The objective of creating a diverse bench is distinct from the need to desist from any discriminatory practices. South Africa is a pluralist society made up of people who understand their humanity, not only as human beings, but as members of religious, cultural, or other social groups. Save in respect of race and gender, there is no express constitutional provision referring to the need for a diverse bench.’^[8]

‘The objective of creating a diverse bench is distinct from the need to desist from any discriminatory practices.

While we should reject the idea that diversity means representivity and that justice can only be dispensed by one of your racial kind, there are two considerations which do justify the quest for diversity on the bench. First, there is a need for legitimacy of the bench as a whole, especially in a country like South Africa. Second, diversity may have the potential to impact deliberation, if not determine outcome, based on the experiences of those involved. ‘While one’s experience surely should not determine the outcome of a case, a diversity of experience can legitimately enhance the deliberative process in an appropriate case.’^[9]

What is meant by ‘race and gender representivity’?

‘Race and gender representivity in the judiciary have a distinct and special place by virtue of the provisions of section 174(2) of the Constitution, which stands on a different footing to section 9 (the equality clause). That provision requires, in mandatory terms, that those responsible for appointing judicial officers to consider “the need for the judiciary to reflect broadly the racial and gender composition of South Africa”. The Constitution thus ordains both that there is such a need and that whenever judicial appointments are made, that need must be considered.’^[10]

While the provisions of section 174(2) seek to specifically enhance race and gender representivity, it cannot be so that being black and/or being a woman constitutes a valid criterion for judicial selection. Such an approach to the criterion for judicial selection is misleading ‘because the criteria for judicial selection are that a person be appropriately qualified and a fit and proper person. If a person is not appropriately qualified and is not a fit and proper person, it is irrelevant whether they are black or female. That person does not qualify for judicial office.’^[11]

Valid criterion of judicial selection

It is evident that the criterion applied in the appointment of judicial officers extends far beyond the provisions of section 174 of the Constitution. The factors considered must extend beyond the need to appoint an appropriately qualified person, a fit and proper person, and the need to enhance diversity, race, and gender representivity. We agree with the view that it cannot be so that being black and/or being a woman constitutes a valid criterion for judicial selection as such an approach to the criterion for judicial selection would be misleading.

^[1] Magistrate AK Amos v Minister of Justice & 2 others, case no 9469/17, an unreported judgment of the Western Cape Division delivered on 12 September 2019

[2] Richard John Lawrence vs The Magistrates Commission & 3 Others, case no 1070/2019, unreported judgment of the Free State Division of the High Court, Bloemfontein on 12 December 2019

^[3] Judicial Selection in South Africa Democratic Governance Rights Unit (DGRU) (2010) at p 15

^[4] Judicial Selection in South Africa Democratic Governance Rights Unit (DGRU) (2010) at p 15

[5] These issues came under the spotlight at the Kliptown hearings when the JSC announced its shortlist of seven candidates for President Zuma’s consideration after only one hour of deliberation in respect of 21 candidates. For some discussion of the issues, see ‘Transformation of the Judiciary’ – a Constitutional Imperative’, inaugural lecture by President of the Supreme Court of Appeal, Judge Mpati, University of the Free State, 6 October 2004: www.supremevourtofappeal/speeches/mpati.pdf.

^[6] Judicial Selection in South Africa Democratic Governance Rights Unit (DGRU) (2010) at p 28

^[7] Judicial Selection in South Africa Democratic Governance Rights Unit (DGRU) (2010) at p 43

^[8] Judicial Selection in South Africa Democratic Governance Rights Unit (DGRU) (2010) at p 66

^[9] Judicial Selection in South Africa Democratic Governance Rights Unit (DGRU) (2010) at p 68

^[10] Judicial Selection in South Africa Democratic Governance Rights Unit (DGRU) (2010) at p 69

^[11] Judicial Selection in South Africa Democratic Governance Rights Unit (DGRU) (2010) at p 72