It is the chauvinism of the legal profession, not the lack of talent, that makes it so difficult to transform the judiciary, writes Dennis Davis
THE quite astonishing outburst by Mahomed Bulbulia concerning his failure to be appointed as a judge of the supreme court has refocussed attention on the mechanism for judicial appointment.
Bulbulia asserts that Judge FJ Eloff, the Judge President of Gauteng, was motivated by racism in opposing his appointment and that the interview conducted by the Judicial Services Commission (JSC) was insulting and abusive.
These are serious allegations which can only serve to fuel racial suspicion of our judicial system in general and of the JSC in particular.
The JSC has truly been hoist by its own petard. Its obduracy in refusing to embrace the principles of openness and transparency means that the public will never know whether Bulbulia has reported correctly on its performance.
I doubt whether Bulbulia is entirely correct. Strong personalities such as Arthur Chaskalson, George Bizos, Ettienne Mureinik and Wim Trengrove would hardly countenance any form of racism. However, important questions arise.
Bulbulia’s record as an Industrial Court officer is patchy, although no more so than many sitting judges. Hence the incident needs to be taken seriously. Unquestionably the judiciary needs to be transformed to reflect the demographic composition of the country. That however does not need to entail tokenism. There are a number of black and women lawyers of talent and competence to contribute to our emerging jurisprudence without resorting to the expedient of appointing every black claimant however incompetent, conservative or sexist.
It is the chauvinism of the legal profession, overwhelmingly white and male, which makes it so difficult to promote such a distinction. The refusal by the profession to grasp the difference between tokenism and affirmative action bears eloquent testimony to its Victorian myopia.
Take for example Jeremy Gauntlett’s recent contribution to this newspaper. Gauntlett, although one of the most distinguished and liberal members of the Bar, asks rhetorically: Where are the women to staff the courts? If the Bar is the only route to the Bench, Gauntlett might be partially correct, but this entrenches a standard which has not necessarily served South Africa with distinction.
Judges need to understand the mores, cultures and aspirations of all South Africans. Generally members of the Bar are only cognisant of white male and middle class interests and values. Knowledge of supreme court practice is obviously vital but so is sensitivity to one’s society.
Appointments can be made which strike an adequate balance between experience and ability which meets both these standards and thus begins the process of transformation.
Among others, Carol Lewis, Kathy Satchwell, Navi Pillay, Dikgang Moseneke, Zac Yacob, Thandabantu Nhlapo together with June Sinclair (mentioned by Gauntlett) could add much to the quality of the Bench. All too often pedestrian intellect and an undistinguished practice have been ignored in judicial appointments so long as the candidate is a member of the old boys club — the Bar.
The Bulbulia outburst should be seen as a warning of the failure to transform the legal system as expeditiously as possible. For the legal profession the challenge must be to develop a new, rational standard for appointment and for the critics to realise that transformation will not be achieved by the irrationality of tokenism.
Professor Davis is Director of the Centre for Applied Legal Studies