The words of Steve Biko — “Just like Jews know that if you forget that you are Jewish, a gentile will remind you; if you forget that you are black, a white man will remind you” — must be starting to ring true for black lawyers and newly appointed black judges.
These lawyers are finding, right in the corridors of justice, that no matter how high they go or well-read they become, they will never shed the albatross of their blackness. So, what’s new?
Says a legal professional who, for legal reasons, has asked not to be named: “Judges are appointed from the ranks of attorneys and advocates. If white attorneys and advocates do not treat us with respect as attorneys and advocates, you cannot expect them to suddenly do so just because a person is a judge.”
Last month the Mail & Guardian published an article, “A black day in court”, suggesting that there was “a widespread perception that senior white advocates have little respect for recently appointed black judges, believing themselves to have superior experience and more substantial capacity for the scholarship that complex cases require”.
This flowed from rumours in the Cape division that a judgement (in a matter between the Pharmaceutical Society of South Africa and New Clicks against Minister of Health Manto Tshabalala-Msimang) by Judge Andrew Yekiso had in fact been written by the division’s Judge President John Hlope. Judge Hlope said the rumours were an insult to himself and to Judge Yekiso.
Norman Arendse, SC, the chairperson of the General Council of the Bar, says the advocates involved in the case were not party to the rumour-mongering. “The rumour was started by a judge in the Cape division and spread through the corridors of that court.”
He says the advocates, Wim Trengove, SC, and Jeremy Gauntlett, SC, (who appeared for the Pharmaceutical Society of South Africa and New Clicks respectively) have assured him that they are not the originators of the rumour. “Given their track record, I have no reason to doubt them. They support the need for transformation,” says Arendse, who is also chairperson of Advocates for Transformation.
Although there is agreement that the disproportionately large number of white male judges must be corrected, there are unfortunately some in the profession who think it should not happen in their backyard.
If Arendse is correct that the rumour was spread by a judge, it is doubly disconcerting that someone trained to weigh all the evidence before pronouncing judgement should decide a person’s competence solely on the basis of skin colour.
Arendse says such attacks on judges affect the administration of justice. No one could feel confident that they will get a fair hearing if they appear before a judge who has to have his name attached to a judgement he did not write.
“If rumours are circulated by some judges, it is an issue that must be presented to the Judicial Service Commission and must be discussed as soon as possible,” says Arendse.
Acting Chief Justice Pius Langa agrees: “Racially motivated attempts to undermine the competence, dignity and integrity of any judge would constitute a serious threat to the proper administration of justice and will be condemned by all judges and members of the legal profession who subscribe to the values of our new constitutional order. 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.”
Arendse says the continued existence of organisations such as the Black Lawyers Association (BLA), Lawyers for Transformation and the National Association of Democratic Lawyers, all of which are historically black, speaks to the reality of race as a factor in the legal profession and society.
“We cannot pretend that there is no longer racism and everything is honky-dory [sic]. Every year at our [Advocates for Transformation] conference, we have a debate about whether we should continue to exist. That debate lasts for one minute — the answer is always ‘of course, yes’.”
Exclusive black organisations will continue to exist for as long as black professionals continue to be seen as token appointments. The only thing surprising about the Cape High Court attack is that it allegedly originates from a judge, which suggests that the current imbroglio is not only between the Bench and the profession, but is also an intra-judiciary battle. It is still hard for some of their white counterparts to countenance the possibility that blacks could have landed their positions on merit.
A convoluted, legalistic sophistry has been employed — the so-called concern for standards — to hide a dormant racism. When white judges are not appointed, it is readily assumed that it is because of their colour or gender, if they are male.
That is why the likes of the BLA’s judicial committee chairperson, Dumisa Ntsebeza, who is also a former commissioner at the truth commission, says those who have quarrels with the quality of judges must come out into the open and not hide beneath “the petticoats of anonymity”.
Earlier this year, Ntsebeza took the Sunday Times’s Carmel Rickard to task for an article suggesting that the non-appointment of respected lawyer Geoff Budlender to the Cape High Court effectively meant that the door was closed on white males aspiring to be judges. The Judicial Service Commission opted for then acting Judge Daniel Dlodlo ahead of Budlender.
Such is the racism in the legal profession that some leading black lawyers say they anticipate it.
An acting judge, who declined to be named because he is vying for a vacant position on the Bench, says: “It would be strange if there were no white colleagues who, by virtue of who I am [a black male], think I am not sufficiently qualified. If that question comes up, I will answer it at the Judicial Service Commission interview.”
BLA president Edward Ngubane says: “There are some who believe that if something is not white, then there is something wrong with it.”
He says all judges, being human, may err. “But the innuendo in the comments suggests that the errors are because people are of a particular background or race. The same individuals do not criticise appalling judgements of a judge of another race.
“Criticism should be fair, not aimed at advancing an agenda. If it is about an agenda that stifles transformation, then such criticism is dangerous.”
The acting chief justice has called for a meeting. Hopefully, Judge Langa will go further than merely asking people to change their ways.
For victims of racism in the legal profession, the system must be seen to deal sharply and quickly with professionals who promote racism. This alone will be enough to send a message that racism is not an occupational hazard that black lawyers must tolerate, but an evil to be eradicated.