The failure to appoint
The opportunity not to do something is as important as the chance to do something. This JSC has chosen to step back on making appointments to two leadership positions in the Northern Cape and the North West. In both instances the interviews of the candidates left a clear trail of clues as to why the appointment was not made.
In the case of Judge Hendricks from the North West the questions hanging over his head were around bullying of staff, and concerns around allegations of corruption in the division, to name two. In the Northern Cape division, conflict between two senior judges, vying for leadership was exposed. Unfortunately one candidate denied there was any problem. This exposed her either as lacking insight into problem, or not answering candidly in response to questions. The other judge fared no better.
So an entirely defensible decision, but here’s the rub. In both cases, this is the second round of interviews for the leadership positions. No one appears to have been found as appointable. What next? Is there another candidate in the wings in that division? It is possible for a judge on another division to apply for the position, but then that means going to live and work in Kimberly or Mmabatho. Judges in bigger courts may not relish moving to a smaller division, with fewer matters.
Is it possible to encourage other applicants from within the division? The importance of seniority in the legal profession is not to be underestimated. It infuses almost every interaction between people, who can only maintain cordial relationships while battling it out every day in court by having many rules to smooth over the interpersonal conflict that would otherwise occur.
So it is a serious problem. Parachuting in a more senior judge in from another court is equally tricky. So where are we left is with this failure to appoint?
Historically the problem was managed in a slightly contrived but effective way. It was absolutely frowned upon to put yourself forward to be a judge. You were expected to wait patiently until you got the famous ‘tap on the shoulder’. Ambition was not considered a good quality, nor self-aggrandisement. This seemed to work in managing the ambitions of people whose egos are of necessity not small.
Now, the world and the legal profession with it has changed. Not only is having a healthy self esteem considered a good thing, speaking well of yourself and putting yourself forward is considered a necessary part of professional promotion. The pool of people who are being tapped for judicial positions is now much broader. You can certainly not reliably be observed by a Judge President as a good candidate for judgeship, if you are sitting in a magistrate’s court far from the seat of the high court.
So, a new culture of putting up your hand is emerging. This may well end up with a candidate finding themselves between a rock and a hard place – having put up their hand, they are turned down. Now they must see a more junior colleague leap-frog them, knowing they did not wait for their senior judges to indicate that they are ready for a position, or worse, asked for a position against the recommendation of their senior. And the JSC is faced with open conflict around positions, rather than the orderly procession that may have been the case in the bad old days. And no appointments.
You may disagree with this analysis as to why we are in this position, but facts are clear. There are two divisions which have to carry on with no leadership appointments, and the challenge of who to appoint in an acting capacity, when the obvious candidates have been found to be not appointable.
Perhaps the appointment of the candidates in the first place is the correct point of departure. Phatshoane, Pakati and Hendricks all have a background in the magistracy, although to a lesser and greater extent. Those who remain of the view that the magistracy is a murky pool of potential candidates for the bench might well point to this problem as potentially having its roots in magistrates becoming judges, and the erosion of the conventions of the bench. The reluctance of candidates to face the JSC and the grilling they get there in open session might also be a factor, in that only the ambitious will put themselves forward. Aggravating the situation can be the very small pool of judges for leadership positions in the smaller divisions, so you start with fewer candidates than is ideal.
The decision not to appoint is as important as the decision to appoint, and cannot be shied away from. The consequences of that decision, however, have ramifications for the JSC and the bench, both of whom will have to wrestle with these issues going forward.