Johannesburg — THE announcement by the Judicial Service Commission (JSC) last week that it would advertise again for a Constitutional Court judge means that this will be the third time the position has been advertised.

Chief Justice Pius Langa said last Wednesday that even though four candidates had been interviewed for the position, "the JSC considered that the names it would be able to submit to the president, as a result of the interviews, fell short of the requisite number of four".

The constitution requires the JSC to give the president a list of names with three more names than the number of posts available.

Because the JSC felt that one or more of the candidates interviewed could not be recommended, Langa said "no recommendations for appointment to the vacancy could therefore be made".

This will be the second time the post has had to be readvertised. In August, the position was readvertised for similar reasons: because the number of "appointable candidates" fell short of what was required.

Before the August advertisement, Business Day's sources said that the earlier list of people who had applied was "weak". This was apparently a result of the immense pressure on the Constitutional Court following the complaint made by the Constitutional Court judges to the JSC that Western Cape Judge President John Hlophe had tried to influence the outcome of cases then before the court involving African National Congress president Jacob Zuma.

But the JSC was already cutting it fine when it interviewed only four candidates for the position. This happened because three of the original seven hopefuls withdrew their applications.

Judge Eberhard Bertelsmann withdrew his application a week before the interviews, and judges Chris Jafta and Frank Kroon withdrew theirs at the last minute.

Again the JSC would not give reasons for the Jafta and Kroon withdrawals, but both are entangled in the legal wrangle with Hlophe. Both were acting on the Constitutional Court bench when Hlophe allegedly made his approach, and Jafta was one of the judges Hlophe is said to have approached.

This meant that only four people eventually applied, leaving the JSC with no option but to submit all their names to President Kgalema Motlanthe or readvertise.

When the JSC last readvertised the post, other explanations were bandied about in the media for the lack of candidates: unhappiness at the way the Constitutional Court was being run and also, unhappiness at how the Constitutional Court chose which cases it could decide. Candidates were said to have thought they might have a better chance in the next round of interviews when four posts instead of one would be made available.

It is likely there is more than one explanation, and that potential candidates were motivated by different considerations. It may also be that behind it all is a deeper problem going to heart of the rocky transition of the judiciary from a (usually blunt) apartheid instrument to an instrument of justice and transformative change.

This process has not been without its pains, with many of the more conservative judges and advocates having to be dragged to the transformation party kicking and screaming.

The constitutional imperative of racial and gender representivity continues to cause dark mutterings in the corridors of courts and chambers.

White lawyers feel hard done by as they feel being a brilliant lawyer is not good enough for judicial appointment or promotion any more. Black lawyers feel hard done by because old patterns of privilege are still being perpetuated, and being a brilliant lawyer does not mean one will be briefed.

Nowhere was this school of thought made clearer than in Judge Carole Lewis's speech last week, which has since led to a decision by Advocates for Transformation to make a complaint to the JSC.

In her speech, Lewis referred to the practice of the JSC since 1995 to broaden the pool from which it could choose candidates for judicial office. Judicial appointments were previously drawn only from senior counsel.

Now, the JSC interviews attorneys, magistrates, junior counsel and academics. She said that this was necessary for transformation because the vast majority of silks were white.

Lewis said that appointing judges with little court experience had "done the public no service" as it resulted in bad decision-making.

In the past few years many potential candidates were disenchanted because they felt they might be "deprecated as white, and therefore old-order, judge(s)", she said. Some felt "that political fealty is a more assured path to appointment as a judge than ability".

Lewis told Business Day last week that this was not her own view -- it reflected the views expressed by members of the legal fraternity -- but the issues needed to be debated openly.

Indeed, what Lewis said openly is what one hears off the record often.

Since Constitutional Court judges are often drawn from judges on other benches, the same feelings and perceptions would presumably apply to those who could potentially be promoted to the Constitutional Court.

But the problem with the feelings reflected on by Lewis is threefold. On the one hand, it seems based on an assumption that only silks really know the law and have enough court experience to become judges.

From the JSC interviews in Cape Town earlier this month, that was not cut and dried. There were senior counsel who stumbled when quizzed on landmark judgments, and there were magistrates whose legal knowledge and understanding was excellent.

Second, the appointment of a wider range of people has had dramatically positive results. Judges are more representative, less elitist, and more diverse.

The face of authority in SA is no longer an old, male, white, rich, private-school educated, suburb-dwelling face.

Finally, the idea that "struggle credentials" give you the edge misconstrues what the JSC is really doing.

Justice Minister Enver Surty put it clearly when he said "the expectation is not that you have to have been a political activist to be appointed to the bench".

He said the question was whether a candidate had contributed to transformation because it showed a type of consciousness that would enable a person to be a better judicial officer.