all
In a recent edition of the American Bar Journal, the problem of race in the legal profession received comprehensive analysis. Black lawyers speak of glass ceilings in white legal firms, black jurors refer to the manner in which they are distrusted by white counsel and black candidates for judicial office report on significant racial bias. The profession is significantly divided; white and black practitioners see very different realities.
Whatever the merits of the analyses in the journal, the South African legal community needs to ponder these reports from a country where the race issue is still very much alive and blacks are in a minority. With a profession dominated by whites but with the majority of the population being black, the problem is even greater. Were Consultus or De Rebus – the two magazines of the legal profession – to commission similar research, the conclusions would doubtless be even more devastating.
In this country, the fact that black and white lawyers appear to inhabit different worlds implicates the entire society. Recently two cases revealed the extent of the implication. After the Allan Boesak trial, the cleric’s spin doctors placed the blame on the white judge. From what this columnist understands, Judge John Foxcroft is one of the more liberal judges in this country, hardly the mean-spirited bittereinder portrayed by Boesak’s spin doctors. In this case, Foxcroft was condemned for his white skin, Boesak exonerated for his theft.
A few weeks later, the opposite happened. Whatever Louis Luyt’s motive, the effect of his unsuccessful application for the recusal of a clutch of Constitutional Court judges was to place the institution of the court under the spotlight. The recusal application would have bolstered the view of many bittereinders (and quasi bittereinders) that the court was a political body sympathetic to the government. As in the case of Foxcroft, the record of the court becomes irrelevant, the decisions that have gone against the African National Congress forgotten.
For the record, a number of lawyers considered that Luyt may well have had a case for the recusal of Judge Arthur Chaskalson (on the facts). But, in general, the attack was against the ability or willingness of certain judges to be objective in a case involving ANC leadership. Thus the effect of the argument against Judge Albie Sachs was less about the case in point and more about his suitability for a position on the court.
Without widespread legitimacy, a judicial system cannot perform its proper function. Race was always going to play a part in the moves to transform the institution into a truly legitimate body. Our past and the understandable constitutional imperative to ensure that blacks and women are appointed to ensure representivity guaranteed that result. The constitutional scheme ensured that law would become politics by another means.
But the extent of the problem has now been emphasised by Luyt and Boesak. Luyt contrasts the perception of political bias in the ranks of the Constitutional Court against the courage of Judge William de Villiers as if the latter has no political past. Boesak’s supporters condemn a decision on the grounds of the race of the judge alone, whereas most practitioners would consider the judge to be fair-minded.
Other developments confirm these diverse perceptions. Certain of the recent spate of judicial appointments are greeted with gasps of disbelief from the legal profession. Where is the competence or the talent in these appointments, they ask.
The reports from America and the recent developments in South Africa should be cause for examination. Apartheid was designed to ensure that black South Africans should never obtain skills. That there have been a significant number of black lawyers to fill a variety of positions since 1994 is testimony to the talent that refused to be crushed by racism. But for the pool to be sufficiently large to sustain viable, legitimate, legal institutions that reflect the country’s demography, a measure of planning and patience is required.
Instead of pretending that the existing pool is inexhaustible, the Judicial Services Commission, the Department of Justice and the profession should take steps to identify talent and ensure that it develops quickly without the constraints of glass ceilings.
To ensure that the many who are concerned that Luyt’s recusal application did focus on questions of institutional legitimacy, consideration should be given to the viability of one highest court. In this way there can be no suspicion of forum shopping.
Equally, one representative highest court will meet the objections of those who see the Supreme Court of Appeal as an unreconstructed institution dominated by the jurisprudence of the past.
The stakes are high. Legitimacy of the judiciary in particular, and the profession in general, are important issues for a constitutional state. Hopefully deliberation will replace populist rhetoric from whatever source of the political spectrum in dealing with this issue.