It takes courage to call out race nationalism in choice of judges - Businesslive

9 February 2020 - Sometimes, being confronted by alarming truths can be reassuring. If something is seriously the matter, knowing that it’s properly understood and thoroughly explained is an essential step towards solving it.

Michael Morris

Sometimes, being confronted by alarming truths can be reassuring. If something is seriously the matter, knowing that it’s properly understood and thoroughly explained is an essential step towards solving it.

A clear, if unnerving, case in point is the publication on Politicsweb last week of the observations of Supreme Court of Appeal (SCA) judge Azhar Cachalia at a Helen Suzman Foundation roundtable in December on the independence and accountability of the judiciary.

The judge used the occasion to sound the alarm about the judiciary being “denuded of skills” because of the predominant influence in the selection of new judges of racial and other factors over an assessment of “skill and competence”.

Cachalia said: “The Judicial Service Commission (JSC) has, particularly over the last decade, overemphasised race or other factors and paid less attention to skill and competence in the appointment process. This approach does not accord with the proper interpretation of the relevant provisions of the constitution. The result is that the judiciary has been denuded of skills.”

Highlighting the consequences, he said: “There is now a spectacle of legal professionals being asked to ‘help out’ because of a shortage of skills — even at SCA level — who are then not shortlisted for or appointed to permanent positions because of race.

Later, he said: “The SCA’s president was informed that she would not be able to appoint more than one white male. I make no comment on the qualities of the other candidates, but this policy is applied despite the fact that there is a skills deficit in our courts.”

It is no surprise that Cachalia refers to “concern in the legal profession and the broader public”, and that it is “therefore important that the appointment of judges is once again placed back on a proper constitutional footing”.

By his account, a “sea change in the culture” of the JSC occurred after new appointments to the commission by then president Jacob Zuma in September 2010.

In time, “requirements of competence, technical competence and experience ... became less important because there was a drive to meet the transformation needs of the country”.

The judge noted that watching the “proceedings of the JSC one has the distinct impression that it is not able to assess the merits of applications properly. The results, more often than not, are also a foregone conclusion.” It was “unavoidable” to conclude “that the way the JSC has approached its task has led to a weakening of the judiciary from top to bottom”.

Cachalia ended by acknowledging that “the judiciary has played a crucial role in protecting our democracy”, standing firm “against the predations of state capture” and having “largely maintained its independence”.

But “that does not mean that we should close our eyes to the very worrying approach that has been adopted in the methods and considerations that influence judicial appointments”.

The public owes a debt of gratitude to Cachalia for caring enough, and being brave enough, to speak his mind.

For too long, racial nationalism has been SA’s crippling weakness, stunting the real national interest by defining it narrowly and establishing a self-fulfilling logic to determine who belongs, who deserves, who governs and who judges.

The 20th-century costs of racial nationalism were high and lasting. They remain with us. The worry is that the incipient racial nationalism of these early years of the 21st century carries serious risks, too. But it is reassuring that individuals of courage and insight are willing to highlight them with such candour.

• Morris is head of media at the Institute of Race Relations.