The first Judicial Service Commission (JSC) meeting under new Chief Justice Mogoeng Mogoeng was not without its share of interest and possibilities for the better. During the proceedings, Mogoeng questioned the role of black judges who are elevated to office and then contribute precious little to the transformation of the judiciary in particular and the legal system in general.
Although his intervention is open to interpretation, it does appear that Mogoeng was arguing that, while demographic concerns are a necessary component for change on the Bench, they are insufficient to achieve the constitutional mandate for the transformation of the legal system.
This line of argument opens the possibility of a discussion about the balance between ensuring that the judiciary broadly reflects the demography of the country and the appointment of lawyers who bring real possibilities for jurisprudential change, the latter category of which may well transcend race and gender.
Expressed more bluntly, a host of progressive candidates have been rejected by the JSC over the past few years and, in at least some well-publicised cases, the rejected candidate has been white and has, on the basis of his or her record, been deeply committed to the transformation of the legal system in line with the normative framework of the Constitution.
To date, this difficult question has been circumvented at best or, at worst, racial essentialism has been the preferred discourse in JSC appointments. Now Mogoeng has asked us to lift our eyes and examine the larger picture, namely how best to make appointments that will convert the Constitution and its value system into a practical legal reality.
At the same time, the specific issue of a non-racial judiciary could no longer be ducked by the JSC. As reported in this paper last week, an unsigned letter reached the JSC from Pietermaritzburg members of the Black Lawyers Association, in which accusations were made against KwaZulu-Natal Deputy Judge President Chiman Patel – that he was, in effect, “anti-African”.
Leaving aside the claim that minority groups had been preferred by Patel in his appointment of acting judges, which was shown to be nonsense, the implication of the letter was that only a black African could be judge president – an assumption running counter to non-racialism.
To the considerable credit of the JSC (and Dumisa Ntzebeza SC and Judge President John Hlophe in particular), this line of attack against a distinguished judge was utterly discredited at Patel’s hearing for judge president of the KwaZulu-Natal High Court.
These are significant pointers in the direction of a more constitutionally normative approach to judicial appointments by the JSC. An additional factor probed by the JSC in the recent bout of hearings concerned briefing patterns at the Bar.
The apparent preference given to white males at the Bar was the subject of a number of questions to members of the Bar who were interviewed by the JSC. This is a perfectly justifiable line of inquiry: without far more exposure to complex litigation, particularly in the area of commercial law, the process of transformation of all legal institutions becomes far more onerous.
Hence questions dealing with the record of senior counsel in working with junior counsel other than white men represents an important focus of investigation. The response demanded by clients from certain junior counsel, as opposed to what they demand from the attorneys or senior counsel themselves, is a canard that, in most cases, has little basis in reality. A better explanation was demanded.
The short point is that the JSC under the leadership of the new chief justice conducted hearings that provide some basis for optimism that demographic concerns will be reconciled with the overall vision of a non-racial Bench. These lines of inquiry taken by the JSC must be encouraged.
But the JSC cannot achieve the task alone. The continued reproduction of glass ceilings by the profession, which then creates a dearth of certain forms of expertise among black and women lawyers, is not the fault of the JSC. The practice holds serious consequences, including a shift to commercial arbitration, not only because of delays in court rolls but also as a result of a lack of confidence in the existing Bench to do an adjudicatory job of similar quality.
Whether this is a result of racist perception or judicial track record is not a question this column can answer definitively. The fact remains, however, as shown at the recent JSC hearings, that the sidetracking of courts in commercial-law disputes is not only ossifying our law for lack of fresh precedent but also represents an attack on the very legitimacy of the courts. Without an increasingly transformed profession, particularly at the Bar, the problem can only grow.
It must be hoped that the JSC will build upon this series of hearings and continue to create a non-racial judicial institution committed to the values of the Constitution. Is it too much to ask that this promising shift in emphasis will be accompanied by similar steps on the part of the profession?