Measured approach: Constitutional Court Justice Zukisa Tshiqi works hard at keeping an open mind when presiding over cases in court. (Paul Botes/M&G)
‘I can’t see you,” said the magistrate.
When a magistrate says this, you need to worry because it means you’ve done something wrong. The expression is one of those peculiar archaic court traditions — a way in which a magistrate indicates disapproval. Maybe you did not go and introduce yourself before the trial, maybe your robes are wrong, maybe you didn’t bow when you came in.
But Zukisa Tshiqi had made sure she had done all the right things. It was her first time appearing before this magistrate in the Boksburg magistrate’s court, so she was already nervous.
Tshiqi, who was appointed to the Constitutional Court this week, recollects the moment in court and says she doesn’t like to make assumptions that people are motivated by racism. But she thinks she was the first black woman to appear before this magistrate as an attorney.
“Erasure” was not a word used back then. But this deliberate and systematic refusal to acknowledge was the daily fare of the trailblazer black women lawyers of Tshiqi’s generation. In her case, the magistrate, literally, would not see her. And he kept doing it, every morning, every day, for the duration of the trial.
This was the first time. But it was not the only time. Another magistrate, in the Germiston magistrate’s court, did the same. Years later, after he had retired, Tshiqi met him again. He was appointed to be her assessor — a junior assistant to a judge in a criminal trial — after she was appointed as a judge in the high court.
“I reminded him,” she says. He fidgeted and blustered, muttering something about “in those days”, she says.
There’s a glint in her eye when she tells this story. But it’s hard getting it out of her. I had asked her earlier whether it hurt her that the advocates body — the General Council of the Bar — had said, when commenting on her earlier application for the highest court, that her judicial record was scant; that it didn’t seem as if she had delivered many judgments.
She says that it did not hurt — not really. “I have had so many experiences like that.” So I ask her if she would share those. “I’d rather not,” she answers, at first.
Later, she says: “You learn to take it; you learnt to take it because you knew you could not give up. And, therefore, you had to find a way of dealing with it. Not deal directly because the fear for me, always, was that if I become confrontational then I’m going to lose my focus. So I knew that I could not afford to lose my focus. I knew that I could not allow that to distract me.”
Tshiqi is measured in her speech — very judge-like — so much so that I find myself stealing looks around her house for clues into what really moves her. There is a wall of family photos, there are paintings, copies of famous Drum photos of jazz scenes from the 1950s. Everything is impeccably organised: in her study are neatly piled stacks (stack and stacks) of court papers — the work ahead for the Supreme Court of Appeal. There is a massive portrait of her parents — a copy of a photo of them on their wedding day.
Her father was the biggest influence in her life. Despite the poverty all around them, through his grit and relentless hard work he made sure that eight children were educated.
“I can’t recall any moment that that man was idle … When he arrived in the afternoon at home, all of us would just stand up and try and make ourselves busy,” Tshiqi says.
A farmer, he drove his children as hard as he drove himself. They would be fast asleep and he would wake them up in the middle of the night because it was raining — the best time to plant potatoes.
“At first we thought he was cruel,” she says. But, she adds, “I appreciate that now because this is what I always have in my mind: that if I work hard, I will achieve.”
Hard work is important to Tshiqi. She works hard. When she has worked hard and done her best she is satisfied — even if a draft judgment is returned by colleagues with many suggestions.
“I would hate it if I did not do my best and then colleagues come with suggestions, because I would then feel that I did not do what I was supposed to do. If it was your best effort, then you can’t blame yourself.”
She says the comment of the General Council of the Bar was factually incorrect. She had even tried to access the many judgments she had written in the high court to show them to the Judicial Service Commission, but was unable to do so because of the state of the archives at the Johannesburg high court.
Tshiqi was appointed to the high court in 2005 and went to the Supreme Court of Appeal in 2009, after acting there the same year. She must have impressed her colleagues to get the permanent gig so fast.
Yet it was “rough” when she started out at the appeal court, she says.
“It’s a precedent-setting court. When we all get there, somehow there is a mind shift. You feel intimidated, not by colleagues, but by the task at hand.” Until today — 10 years at the court — she still finds she doesn’t sleep well in Bloemfontein.
Being one of the early African women on the appellate court — she was the third to be appointed — did play a role in the roughness. But, in general, she says, “law is rough. The life of a lawyer is very tough. Yes, you may make money if you are successful, but the amount of preparation that goes into that is considerable.”
But “I’m a fighter”, she says. “I fought back then in the magistrate’s courts, I fought in the high court, I fought in the Supreme Court of Appeal.”
The discipline required to remain open-minded is also harder than it looks. “You read, and you have a prima facie view. But then, I have to know that a prima facie view is just that, and that someone else may see it differently,” she says. “And I must be able to reflect and research and then realise that I’m wrong. And we are human beings, you know, it’s not easy to be persuaded otherwise.”
That’s why she reads every judgment cited in the court papers, “because that one case might just be the one that changes everything”.
Now, as the seventh most senior judge at the Supreme Court of Appeal, Tshiqi is a “presider”. Because of the system at the Supreme Court of Appeal, it is only as presider that she gets some control over which judgments she gets to write. This system was another thing she had to explain to the JSC, after the commission received a comment that she did not appear to write the big, ground-breaking judgments.
Tshiqi is disciplined in her judgment writing: she does not make comments or express unnecessary views. It’s not about her, or her beliefs, she says. It’s about the litigants.
Her approach to judgment writing is to keep it simple — the simpler the better — and clinical. She deals with only what is necessary to decide the case. She will keep to this style at the Constitutional Court, she says.
As a practitioner, her first love was labour law, although she also had a busy commercial practice. As a student at the University of the Witwatersrand in the 1980s, labour law was at the cutting edge of progressive lawyering. She was lectured by one of its pioneers, Halton Cheadle — “he made labour law so exciting”. Her first judgment when she acted at the Constitutional Court was in labour law.
From eNgcobo in the Eastern Cape, Tshiqi had initially enrolled at the University of Fort Hare, but there were no funds to study. She came up to Jo’burg after she got married and only then was she able to enroll at Wits.
A little way into her studies, her husband was detained under the state of emergency in Modder B prison. “And for a year, we didn’t even know where he was. And at that stage I was pregnant with my first-born,” Tshiqi says. She had her first-born while she was studying, during the time her husband was in prison. She would sit at the dining room table at the house she was staying in, in Wattville, rocking her baby on her back and studying, and take the train to campus. “I used to look at others staying in res …” she says wistfully.
There was no way she could go back home: “And say what to my mother? My mother was not political at all. She would not understand, in fact, she did not understand.”
“I had to pass. I had to. Had to. I had no choice.” And she did.
Asked why she is so quiet during court hearings — unlike some judges who pepper counsel with questions, she says she believes listening is a skill. “Really listening” is how you get answers.
“When you are talking, you’re not listening,” she says.