It is trite to say that the majority of judges are white males and that has to change. It is already agreed that this change has to fit the demographics of society.
Judges agree that “racism is inimical to our constitutional values. It is destructive of the fair and proper administration of justice and the constitutionally mandated process of transformation” as the Heads of Court said last week.
Last week’s interviews by the Judicial Service Commission (JSC) with aspirant judges and those already on the Bench but seeking higher positions in the judiciary showed the chasm between the theory and practice of fighting racism.
As with almost everything in South Africa that is hard to understand, race and racism is used as an explanation for all ills. With our history, this is to be expected.
But we do expect a far more articulate explanation for any disquiet in their profession than the simplistic statement that standards have dropped because of the appointment of blacks and women. Judges and lawyers are paid to argue the best case they can. Shouting “is it because I am black/white” is a pure cop-out.
It is amazing how reticent lawyers can be when confronted with issues of public opinion. Maybe it is because they have no one to send the bill to once they have made their argument. Pity they can’t apply pro bono to themselves. Otherwise the public discourse on race and racism would have been enriched by the views of those whose life’s work is advocacy. No doubt their well-honed arguing skills could be used for a better understanding of issues confronting us. Instead, we are left with the likes of Tony Leon, who jump on the race bandwagon.
In an address to New York University’s Law School this week, Leon said Cape Town lawyer Geoff Budlender was not appointed to the Cape Bench because he is a pale male. By the time Leon made his observations public, President Thabo Mbeki had not, as is his prerogative, approved the JSC’s recommendation.
Then again, Leon is JSC member Sheila Camerer’s boss. He obviously knew more than us plebs.
But even if Budlender was not appointed, who says it is because he is a white man? For Leon’s information, there were excellent candidates before the commission such as Pretoria attorney Esme du Plessis, Justice Poswa, SC, and even Judge John Motata of the Pretoria court. As we now know, only Poswa from these three was appointed.
The easiest reflex in South Africa is always to read gender and race as motives for why things do not go our way. But lawyers ought to know better than to jump to conclusions. Budlender’s fans included.
As judges know too well, half of counsel appearing before them think the judge’s decision is stupid. Such is life.