Jeremy Gauntlett SC: A good judge?

For a long time being a judge in South Africa required one to be male, white and mainly of Afrikaner ancestry. Of course there was a need for one to know something about the law and most importantly, to know a lot more than other lawyers. The generally accepted proxy for sufficient knowledge of the law was being a senior counsel. Senior Counsel are for want of a better description, super advocates who because of experience, competence (whatever that means) and other political considerations “better suited” than other advocates.

The then white government also made sure that those who were appointed judges would serve the purposes and policy of the government of the day. This was all meant to change in the new South Africa. Emphasis was then placed on those lawyers who had a human rights track record. The power of government was also lessened by the introduction of the Judicial Services Commission (JSC). This body is empowered by the constitution (the supreme law of the land) to recommend suitable candidates to the president for appointment as judges. If the JSC does not recommend you, you cannot be appointed.

The new rules of the game saw all manner of lawyers appointed as judges – women, blacks and other whites. Judges became a lot more than just white, male and Afrikaner. There was also the matter of schizophrenic supremacy of the Constitutional Court and the Supreme Court of Appeal. That however is a subject of another rant – for now we consider the makeup of a judge, a good judge. What is of interest is that the judgement of who or what makes a good judge remains primarily in the hands of white males to determine.

Enter Jeremy Gauntlett.

What I personally know of Mr Gauntlett is nowhere near enough for me to pass any judgement on his person, as a judge or otherwise. What is publicly known of him and on which there is pretty much consensus, is that he is a helluva good lawyer. On this, his friends and foes alike are, as lawyers will pompously state: ad idem – which I believe means, they are of one mind – they agree. Understandably, one who is a good lawyer would make a good judge because the law so happens to be a judge’s most important tool. It is the means by which a judge does the job. I should at this point declare that notwithstanding my limited knowledge of Mr Gauntlett and the consensus on his superior knowledge of the law, I harbour uninformed and somewhat envious dislike of the gentleman. So, that he has not on as many times as he has tried, been recommended to the president for appointment as a judge, doesn’t bother me. I do have a view however on whether Mr Gauntlett would make a good judge – whatever being a good judge means.

It is obvious that during the course of what is nothing but an illustrious career, Mr Gauntlett has pissed off a fair number of people. Some of these people apparently have enough power to get back at him. The lawyers I have spoken to over the last 3 years or so have had an unkind word or two to say about Mr Gauntlett – right after conceding his absolute brilliance as a lawyer. It is during one such conversation, during dinner that I suggested that Mr Gauntlett would make a good Supreme Court of Appeal judge. I suggested that he did not have the personality requisite of a judge of the High Court. I didn’t know at the time that he needed to be a judge of the High Court first in order to be appointed to the Supreme Court of Appeal. I must say that none among the guests at the dinner, who were all lawyers of standing much greater than mine, brought this critical point up. Just as well because had it been brought up that evening I probably would have said, well then tough shit. As it turns out I now no longer believe Mr Gauntlett would be appropriate for the Supreme Court of Appeal either. Mr Gauntlett himself informs my change of view, in his own words.

Chris Barron recently interviewed Mr Gauntlett for the Sunday Times newspaper. It is this interview that in my view disqualifies Mr Gauntlett from being considered as a judge.

He says that the JSC made up the reasons for its decision to turn him down, after the fact. He says that these reasons were not the reasons of the JSC, that they were delivered by one man and not circulated to the other members of the JSC. Let us bear in mind that the court has ordered that the JSC must give reasons for its decisions. Let us bear in mind also that the Constitution requires the decisions of the JSC to have the support of the majority of the JSC. And he not in as many words hints that the JSC lied on at least two fronts. Please appreciate that the JSC is made up of some illustrious characters – judges no less.

I have to ask, who inside the JSC is the source of the information that led to Mr Gauntlett reaching the conclusions he shared with Chris Barron? Is this how one seeking to sit in judgement of others should conduct himself; having a mole inside the JSC? Most importantly, what does that make of the JSC? The JSC clearly has it in for this guy – he says as much. There should be remedies for such stuff shouldn’t there be Mr Gauntlett? Denigrating the JSC is not such a remedy. That too Mr Gauntlett and any candidate for judgeship ought to know. Is it perhaps his legendary lack of humility that blinds him to it?

Nothing is more telling of the character and temperament of Mr Gauntlett than his views of humility as one of the tools a judge needs to do the job of judging. He says this is not a requirement because it is not listed as such by the JSC itself. Granted Mr Gauntlett but is humility not implicit for an office of a judge? One who listens to both sides, with patience and understanding? Is it not as implicit in the job description as the ability to read and write? Mr Gauntlett’s view is that he does not need to be humble and in any event, [unlike the chief justice] he does not claim nor believe that God has called him to be a judge.  Regardless of one’s religious belief I would have thought that a man seeking to be a judge would not insult the faith of others. Especially of one who would be his boss – when he is applying for the job! Yes, Mr Gauntlett does not need to be humble to be a judge he does however need a keen sense of judgement. In his own words to Chris Barron, he does not. The faithful among us when they pray are known to declare: thy will be done . . . They are also known to ask: give us this day our daily bread . . . This Mr Gauntlett need not believe but as a judge he needs the humility to respect or at least seek to understand. So it is not hard to see why the chief justice would believe that what he does is the will of God and what he receives is but the gift of the daily bread he prays for. It is lack of humility that blinds Mr Gauntlett to the subtleties of faith and the faithful – I believe.

Like humility, the duty to protect the integrity of the system through which justice is dispensed, is not a requirement to be a judge. At least not explicitly so. The interview with Chris Barron does very little for the system of justice; it does not call it into question (this Mr Gauntlett is entitled to do) it declares it broken and rubbishes it. Unless the JSC is reconstituted how else would judges (who are members of the JSC) who have been denigrated as much as the interview denigrated them be in a position to consider any further applications by Mr Gauntlett? After being called liars they can only recuse themselves the next time he is up for interview. Wearing humility spectacles, he probably would have seen this – I believe.

We all have our preferences and Mr Gauntlett should not be denied his. He prefers not to be liked when it comes to the courtroom. He sees being liked as a contra-indication of independence. Fair enough. He does however give a distasteful colour to that preference when he says: “if they are going to appoint a white male it would be a far more congenial one”. I concede, the courtroom is a battleground where gladiators do battle on behalf of two warring sides. A judge however – in my humble opinion – is never to descend into the arena with the gladiators.

The interview does not bear dealing with in full here. I do however urge you to find it and to read it for yourself so that you can hear Mr Gauntlett tell you himself why he should not be a judge. It is Maya Angelou I believe who cautions: when someone tells you what they are – believe them. Or something like that. Personally I regard it as lack of judgement on his part for giving the interview but I am glad he lacked judgement. At least now I have more than my uninformed dislike of him on why he should not be a judge, of any court.