The only white male interviewed for three vacancies on the Bench this week was asked a single question by the Cape’s most senior black judge.
“Where do you see yourself fitting in as a white man?” Cape Judge President John Hlope asked Eastern Cape acting Judge John Horn. The Judicial Service Commission (JSC) faced the ongoing challenge of transforming the Bench during its interviews for deputy judge president of the Cape and three judge’s posts in the Cape and KwaZulu-Natal.
South Africa’s most senior woman Judge, Jeanette Traverso, was recommended for the post of Cape deputy judge president instead of Judge Siraj Desai, one of a handful of black Cape High Court judges. The pressure of establishing a Bench representative of South African society emerged in interviews for the permanent Cape High Court appointment. The choice was between acting Judge Nathan Erasmus and Cape Judge Horn.
“If I have to fall by the wayside because of [transformation] so be it,” Judge Horn replied. He told the JSC he had stood down from applying for a vacancy on the Eastern Cape Bench in the interests of transformation. It is widely acknowledged in legal circles that the transformation of the Bench has been slow. To date white male judges dominate the Bench.
According to the Department of Justice and Constitutional Development, 19 of South Africa’s 187 judges are women: 11 white, six African, one coloured and one Indian. With the exception of two judges, all were appointed after 1994. In contrast there are 126 white male, 25 African male, nine Indian male and eight coloured male judges.
Ministry of Justice representative Paul Setsetse said gender and race representivity were key elements in the transformation process. One reason for the slow pace to date, despite the JSC’s efforts, was the small pool of candidates who make themselves available for appointments.
Race also popped up in a different guise when Judge Traverso was asked about racial divisions in Cape Town. Limiting her response to the Cape High Court, she pointed to the judges’ practice of meeting on Friday afternoons to “have the shebeen”, or drinks. But she also said that her recent stint at the Labour Court in Johannesburg had shown that there was “a much easier relation across the racial board”.
Judge Traverso told the JSC that the judiciary could be “more representative”. She recounted how on her first day of pupillage in 1975 she was told that women had no future as advocates and that it was inappropriate for them to act in rape cases or consult in cells.
Since then, she said, she has worked to promote women and to sensitise male counterparts to gender issues. Her appointment could help overcome the perception among women that “the doors are being slammed in the legal profession”.
Since his appointment as judge in 1995 Judge Desai has brought a Cape grassroots flavour to the bench. “I can ascertain views not simply at the cocktail parties in Constantia but on the street corners of Salt River,” he told the JSC. All three applicants for the two permanent posts in KwaZulu-Natal were black men.
The recommendations of the JSC have been submitted to President Thabo Mbeki, who has the final say. Meanwhile, the JSC also decided to deal with a complaint against Cape High Court Judge Dennis Davis by six senior members of the Western Cape African National Congress at its next meeting in April.
The complaint stems from remarks Davis made when sentencing murder accused Daliwonga Mandela to an effective 15 years’ imprisonment for the 1997 politically motivated murder of two members of the National Consultative Forum. The six, including provincial secretary Mcebisi Skwatsha, objected to statements including that others implicated in the murders were sitting with impunity in the public gallery because Mandela was a member of a gang.
The ANC officials said the remarks were defamatory, violated their right to be presumed innocent and could not be justified on the evidence presented to the court. In July 1999 the six were arrested in connection with the murders, but charges were dropped because of lack of evidence the next day on instruction from Western Cape Director of Public Prosecutions Frank Khan.
The JSC has received Davis’s response to the complaint and is awaiting the complainants’ comment on this. These responses will be considered together with other documentation before it.