How to transform the judiciary

More than 54% of our judges are black in the generic sense. Leadership of the judiciary—at least on the face of it—is firmly in African hands. The chief justice is African.
So is his deputy. The president of the Supreme Court of Appeal is African. All the heads of the high courts are African. If transformation of the judiciary were a simple matter of packing the courts with black judges, we might as well pat ourselves on the back for a job well done and move on.

But in my view transformation of the judiciary is not simply a numbers game as regards racial representation. It is, more ­importantly, a matter of attitude. That attitude was captured by the ANC at its Polokwane conference when it adopted this resolution: “Appropriate mechanisms must be urgently established to pursue the priority of establishing an adequate pool of judicial officers who are steeped in and reflect the progressive values of our Constitution.”

This is the single most important and truly transformational resolution taken since the dawn of our constitutional revolution. Strikingly, since 1994 the ANC has not once taken a resolution at its national conferences that makes race the central theme in the endeavour to transform our judiciary.

But what are the “progressive values of our Constitution”? Human dignity, equality and freedom. They are not what politicians say they are as their agendas change.

These values are not only in themselves fundamental rights under the Bill of Rights chapter. They are also the values on which South Africa is founded. They are the essence of how the Bill of Rights chapter must be interpreted. In short, without them there is no country and the rights in the Bill of Rights chapter are meaningless.

But such values are not the preserve of any one racial or gender group. I am not aware of any empirical evidence that a black judge is more likely to apply these values than a white judge.

So how does an ANC-led government hope to achieve racial equality without being accused of packing the judiciary with people considered to be sympathetic to it? The answer lies in the “appropriate mechanisms” that the ANC establishes in pursuit of that goal.

In my view, it is relatively easier to gauge the progressiveness of candidates coming up for appointment to the Constitutional Court, the Supreme Court of Appeal and the high court, where those candidates have previously acted as judges or held judicial office in the lower courts. From their written judgements one can determine the extent to which they are “steeped in and reflect the progressive values of our Constitution”.

The difficulty arises where the candidates are academics, attorneys or advocates who have never before acted as judges or magistrates. I believe that such people should not be considered for permanent judicial office. A clever academic does not a wise judge make. Instead you tend to get long judgements with elusive rationes.

When considering the appointment of a candidate the president will do well to bear in mind that appointing a judge is like ­giving birth: once done, it cannot be undone. Firing a judge is not a matter of labour relations. It is ­considerably more serious than that and so, fittingly, considerably difficult to do.

If the president should make a mistake in appointing a judge who does not reflect the “progressive values of our Constitution” but simply says he does, we shall be stuck with that judge until he or she reaches retirement age. That is eminently undesirable.

In conclusion then, the essence of judicial transformation lies not in packing the courts with black judges. It lies rather in packing the courts with judges who are genuinely beholden to the Constitution and the fundamental values thereof. It is not difficult to ascertain whether candidates are so beholden or not. It is time we, the citizens, helped the Judicial Service Commission and the president, make appropriate appointments.

Vuyani Ngalwana is a member of the Johannesburg Society of Advocates. This is an edited version of his address to the Black Management Forum annual conference

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