Merit must trump race

A war of words erupted at the Judicial Service Commission yesterday after a senior judge argued that merit should trump gender and race as considerations for appointment to the bench.

Eastern Cape High Court judge Clive Plasket, one of three candidates vying for two seats in the Supreme Court of Appeal, crossed swords with commissioners, including Justice Minister Jeff Radebe, who said his approach would set back efforts to transform the judiciary.

Plasket, a human rights lawyer since the 1980s who defended many political detainees, faced a barrage of questions from commissioner Dumisa Ntsebeza over the principle of appointing experienced white male judges over less experienced black women.

Plasket said gender considerations should not be used to sideline experienced white men.

“The fact that the one candidate is female, I would suggest, isn’t good enough to trump merit . It becomes a lot trickier when the merit gap is a lot closer.”

He said in instances in which a white male judge had 70 published judgments while a black female judge had six unpublished judgments, the appointment of the white male would be completely justified.

Plasket’s comments follow a report penned by commissioner Izak Smuts accusing the JSC of interviewing white men only as a formality, with no intention of recommending them as judges.

“If the majority view is that . white male candidates are to be considered for appointment in only exceptional circumstances, the JSC should, at the very least, come clean and say so, so that white male candidates are not put through the charade of an interview before being rejected,” he wrote.

His report was to be discussed by the commission behind closed doors.


“Once you find yourself with only white male candidates, I can’t see any basis upon which you can refuse to appoint a suitably qualified person,” said Plasket.

Chief Justice Mogoeng Mogoeng interjected, saying appointing only experienced white men to the bench would set back transformation: “When then are we ever going to transform the judiciary, if we are committed to it?”

Plasket retorted by saying failing to fill vacancies simply because “the wrong race” had applied would have a detrimental effect on the administration of justice.

“I can imagine that the imperative of the administration of justice also kicks in.”


Plasket is contesting Johannesburg High Court Judge Nigel Willis and Judge Halima Salduker, an acting judge in the appeal court.


The JSC will this week interview hopefuls for positions at the Electoral Court, the Competition Appeal Court and several high courts. –