The furore over allegations of racism in the Cape High Court has now acquired a national dimension, with acting Chief Justice Pius Langa preparing to discuss the issue with judges and professional organisations, while Minister of Justice Bridgette Mabandla has announced an inquiry into the progress of transformation in the legal system.
”Honest and open discourse is especially important when disagreements are at their strongest. Our best objectives will be hampered if we operate in an atmosphere riddled with suspicion about one another’s motivations, particularly in respect of race. Tensions must be resolved with integrity and through earnest discourse,” Justice Langa said in a statement this week.
The issues are likely to be thrown into sharp focus later this month when Geoff Budlender, who is white, contends for a permanent post in the Cape division against Basheer Wagley, who is black.
Budlender has twice applied for a permanent position in the Cape division, and twice been unsuccessful. When Judge Daniel Dlodlo was preferred over him after Judicial Service Commission hearings earlier this year, the decision occasioned intense debate about the scope and character of transformation in the judiciary.
Some in the profession cited Budlender’s excellent reputation and struggle credentials, saying if he could not win an appointment, it was clear that the Bench was closed entirely to white men.
They also warned — although none was prepared to do so publicly — that the quality of judgements might decline if the best-qualified candidates were repeatedly passed over on the grounds of transformation.
Black professional organisations responded angrily, arguing that critics of the appointment were undermining crucial efforts to change the racial composition of the Bench, and insinuating that Judge Dlodlo had inferior credentials.
Dumisa Ntsebeza, who chairs the judicial committee of the Black Lawyers Association, says the debate should be in the open, no matter how robust it is. ”If it is so that some on the Bench could be holding the view that some of their colleagues are just affirmative action appointments, that they are not worth their salt, then it is serious,” he says.
Numerous advocates and attorneys to whom the Mail & Guardian spoke to said much of the racial tension at courts around the country results from the style of personal interactions between lawyers and judges.
Norman Arendse, chair of the General Council of the Bar, acknowleges that there is debate among advocates over transformation, but said there was generally a will to resolve problems.
He pointed out that senior black counsel were beginning to enjoy running successful practices and were resisting considerable pressure to go to the bench.
”This means we have to find black candidates who show potential —some have been successful; there have also been failures. The same applies to white judges, but that is why we have a system that provides for appeals.”