In December last year President Thabo Mbeki paid special attention to the judiciary when he opened the African National Congress conference. He made two significant comments.
Firstly, he expressed the wish that the men and women who were to be appointed to judicial office must uphold the spirit of the Constitution. He then registered a complaint that the judiciary and the magistracy were not sufficiently reflective of the demography of the country and that more black and women lawyers must be appointed.
There is something curious about this second comment. Leaving aside the magistracy for which figures are somewhat difficult to access, there were at the end of last year some 185 judges of the high court including the Constitutional Court and the Supreme Court of Appeal (SCA). Of these, roughly one-third were black judges and approximately 10% were women. On the face of it, this appears to support the president’s complaint.
But this picture fails to take account of the significant progress that has been achieved since 1994. Then there were only three black judges and one woman. Hence, in the eight years since the establishment of democracy, more than 60 black lawyers have been elevated to the Bench. Save for the Constitutional Court, the SCA and the Free State High Court, all the heads of court are black men.
The Deputy Chief Justice, Pius Langa, will, in all probability, take over the “top job” when Judge Arthur Chaskalson retires in the not too distant future. Last year Judge Lex Mpati became the deputy president of the SCA and hence it will surely not be long before he assumes leadership of that court.
In a country in which for 84 years (300 may be a more accurate period) every obstacle was placed in the way of black South Africans becoming lawyers, the past eight years have seen significant progress. If there is a legitimate criticism, it is surely about the few women who have been appointed since 1994.
But again, in the context of a sexist profession, the progress has not been insignificant. Within five years the majority of judges will surely be black lawyers; is it too much to expect that during this period a court or two will be headed by women?
Talking to some judges in preparation for this column, the point was repeatedly made that if the government improved the conditions of service of judges, the flow of talented black lawyers to the Bench may well increase even quicker. Mbeki must know of all of these developments as well as the need to make the job more attractive. So the question arises as to the reason for his being so public in his complaint about the lack of transformation of the judiciary?
This question leads to an examination of his first observation about the judiciary. A comment directed to the need for judges to uphold the spirit of the Constitution goes to the issue of transformation. Manifestly, the country requires judges who are concerned to develop a legal system that promotes the kind of society envisaged in our Constitution, one that ensures that the dignity and freedom of the majority who bore the yoke of apartheid are honoured in substance and not simply on paper.
But if this is the conception of legal transformation that the government has in mind, it is unfortunate that the president did not spell it out. Ensuring that the judiciary is representative of the demography of the country is clearly a necessary condition to legal change but it is not a sufficient condition. Having judges who are committed to the spirit of the Constitution is also a necessary condition and that is a requirement that applies to black and white judges alike.
By ignoring the way in which the judiciary’s racial composition has already changed and by failing to spell out a philosophical vision of a transformed Bench, the president has raised questions as to the exact purpose of focusing upon the judiciary in his presidential speech to the ANC congress.
It is surely time to debate the nature of judicial transformation openly and candidly.