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446 Chapter 20
there remains little transparency as to the criteria it uses for judicial
selection. 15 There is arguably a particular need for transparency in respect
of the need to transform the judiciary, which is expressly mandated, in
terms of race and gender, in the Constitution. Transparency of the criteria
used for judicial appointments allows for informed debate as to the
sufficiency of the criteria used, allows those wishing to put themselves
forward for nomination to make an accurate appraisal of their prospects
for appointment, and facilitates the role of the media in providing
information in prompting debate. 16 Moreover, it is also argued that the
quality of decision making is improved when the decision makers are clear
on the criteria they are to apply. 17
Once appointed, there is a need for transparency in respect of judges’
financial interests, in order to properly regulate and avoid conflicts of
interest. Relatedly, there is a need for transparency in respect of the extrajudicial
work undertaken by judges, as well as work undertaken by judges
after their retirement from the bench. Judicial transparency would also
require awareness of judges’ political affiliations – indeed, any factor
which might entitle a litigant to request a judge’s recusal ought to be
disclosed and available to litigants.
Lastly, a theory of judicial transparency would need to take into
account the standards of conduct expected from judges both on and off the
bench. And it must do all this whilst fostering the independence of the
judiciary, as demanded by the South African Constitution.
Many of these issues have been the subject of considerable attention
and often controversy in South Africa, as elsewhere, in recent years. This
demonstrates a clear need to establish and define the standards that judges
must meet. Unless and until these standards are clearly defined, on the
basis of a professional and public consensus that is conspicuous by its
absence at present, the underlying causes of many, if not all, the issues
Klaaren deals with – not least the divisive controversies surrounding
Western Cape Judge-President John Hlophe – will continue to harm the
integrity of the judiciary. Injudicious opacity, to coin a phrase, will thus
serve to undermine the rule of law.
15 S Cowen ‘Judicial selection’ unpublished paper commissioned by the DGRU 7
(Publication forthcoming, 2010).
16
As above.
17 As above.