Divided appeal court is healing

The change at the Supreme Court of Appeal has been attributed to  Nene Molefi. (Delwyn Verasamy/M&G)

The change at the Supreme Court of Appeal has been attributed to Nene Molefi. (Delwyn Verasamy/M&G)

You cannot address a problem if you don’t talk about it, said Supreme Court of Appeal president Mandisa Maya back in 2017. It was a simple explanation for why she had decided to, very publicly and with jaw-dropping candour, expose the seething tensions between the appeal court’s judges.

It is the same explanation she gives today for how much things have changed at the Bloemfontein court.

In the 2017 interviews for Constitutional Court judges by the Judicial Service Commission (JSC), Maya revealed it was only after a diversity workshop earlier that year that black and white judges sat together in the tea room.

Some judges, she said, felt that others did not deserve to be at the appeal court.

The issue dominated that round of interviews. A year later, it continued to dominate.
After some hawkish questions by the chief justice, the “Top Six” emerged as the villains of the story — although it was never clear who the “Top Six” actually were. They were not the six most senior appellate justices as the name implied.

Looking back, the revelations were carefully and astutely managed. No one was publicly named and shamed, enabling the judges to, in a private and safer space, come to terms with each other and themselves.

Maya attributes the change to a number of factors: honest conversation, a “sterling effort” by her colleagues and a couple of diversity and inclusion workshops run by Nene Molefi — whose “book should be our bible”, says Maya.

“They don’t dread going to work at the beginning of each day, which is what they would tell you previously; that coming back to Bloemfontein, people would get sick. They got sick, I mean, literally. So it was that bad. And you don’t hear any of that now.”

Diversity and inclusion, sensitivity training, transformation and change management are some of the names for a growing industry as South Africa comes to terms with how hard it is to shed its history.

“In 1994 what we did was we plastered the cracks, we put plaster, we put paint. Now the paint is wearing off,” says Molefi. South Africans are having to “go back, having to undo that. It feels like a lot of work, but I think it’s work we should have done then.”

The legal profession — and the judiciary it feeds into — has struggled to transform. In 1994 the number of black and women judges could be counted on a single hand. In order to build a judiciary that was legitimate in the eyes of South Africans, that needed to change, and change fast.

The JSC, which appoints judges, has spent its whole institutional life fending off criticism about the pace at which it has addressed transformation — too fast for some and too slow for others.

There are also less obvious factors that make change difficult. The practice of law is hierarchical. Even in the simple act of greeting a presiding judge before a hearing, the most senior advocate must walk in first, followed by the next, and the next.

Similarly, when judges walk into court, they do so in order of seniority. It was quite a revolutionary act when the late chief justice, Arthur Chaskalson, did away with that tradition at the Constitutional Court, but it lives on at the appeal court. Yet, at the same time, once you are a judge on an appellate court “we are all judges, we all serve the constitution, no one is anyone’s boss”, says Maya.

Law is highly competitive and individualised, particularly at the Bar, where advocates are essentially one-person businesses selling their knowledge and skill in direct competition with each other. If you are treated badly by seniors, judges or opponents, you must suck it up. You must prove yourself. “The Bar is not for sissies,” they say.

There are also unique circumstances at the appeal court. “We sit in panels in the court,” says Maya. “Imagine if you are not on speaking terms, how is that going to work? And you carry that negativity into the courtroom. So it is vital that we get along, because we work in teams.”

The Supreme Court of Appeal, where the “nuts and bolts” of the law is most often finally determined, is one of the most pressurised courts to work in. Over the years, the workload has increased but the number of judges has not. At the end of every term, all the appeals are finalised and judgments are delivered. “That creates tremendous pressure, especially on the senior presiding judges who have to take ultimate responsibility for the quality of the work that goes out,” says Maya.

This is where discord arises. “Not only does the senior judge have to contend with their own judgments, that they themselves must write, they must take responsibility for the work of the junior judges and during a very short space of time. And I think it would test even the best of us,” she says.

It’s hard enough to manage when those coming up through the ranks have had similar histories — Molefi talks of “affinity bias”, where a person sees themselves in someone else. It is harder when histories, race, gender and professional experiences differ as radically as they do in the judiciary today.

Judges must acknowledge the country’s history, that women and black people were were excluded from meaningful work, says Maya. “If we are committed to transforming the judiciary, we must acknowledge that we are not similarly experienced and skilled and help one another in the execution of our judicial functions. But those who need help must also acknowledge their lack of experience, be willing to learn and work hard and accept the help graciously.”

“Diversity is an asset, but it also brings complexities and tensions. It always does,” says Molefi. But in the long run, research has shown, over and over again, that diverse organisations perform better.

Much of the work she does involves “surfacing unconscious bias”. She gives an example of an international case study, where a legal opinion of a candidate attorney is sent to 60 partners at a law firm. Thirty of them were told that the candidate attorney was African-American and the other 30 were told that he was white. Those who thought it was written by the African-American candidate attorney made comments such as: “I can’t believe he comes from New York University” and “average at best”. Those who thought he was a white male said “he needs work here and there” and “if he could touch up”. Their scores were very different, she says.

Everyone has biases, she says. A crucial part — and the most difficult — is looking inward to one’s own. “Especially them, they are judges, they are presiding over cases. Imagine if you preside over a case and you haven’t worked through your unconscious bias.”

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