One hundred judges, including 10 of the 11 on the Appeal Court, have come out against Ismail Mahomed, the first black appointee to the Supreme Court and a member of the new Constitutional Court. The white judges, almost all appointed in the apartheid era, are backing, Hennie van Heerden, the most senior member of the Appeal Court.
The judges said they had to speak out after President Nelson Mandela's premature show of support for Judge Mahomed. But critics said their intervention, in probably the most important legal appointment of the post-apartheid era, exposes the deep resistance to change in the judiciary's old guard.
An Appeal Court Judge, Joos Hefer, who said Mr Mandela's favouritism made a mockery of the new selection process, demanded that Judge Mahomed should resign if "there is any honour left in this game". That earned him a reprimand from the retiring Chief Justice, Michael Corbett.
To some, talk of honour from such quarters - Judge Hefer was a champion of apartheid emergency legislation in the late 1980s - reeks of hypocrisy. "Where were the trenchant calls by these luminaries when mediocre members of the erstwhile volk were appointed to the bench by the former state president?" asked Clifford Mailer, a leading advocate and former colleague of Judge Mahomed.
"Where were there calls of dismay when genuine candidates were overlooked for the bench and when others who were on the bench were punished by being overlooked as chief justice for acting independently and against the racist interests of the apartheid government?"
And where, he asked was their sense of fair play when the young advocate Ismail Mahomed had to finish his argument in one day at the Appeal Court in Bloemfontein, because if he stayed overnight he would break the Group Areas Act. Not a voice was raised in protest, said Mr Mailer, when the same apartheid laws prevented Mr Mahomed lunching with colleagues in the bar dining-room.
Criticism of Mr Mandela's support for Judge Mahomed was a smokescreen for the real issues, said Mr Mailer. Another commentator agreed: "The truth is that few judges on the bench embrace the new culture of human rights and are hostile to change."
But no one would dispute that the President's indication of preference to the Judicial Services Commission (JSC) was unhelpful to Judge Mahomed. Although the appointment of the chief justice ultimately lies with the President, he is supposed to consult the JSC and the Cabinet first.Reuse content