Transformation of the judiciary, or the persistent lack thereof, fell under the spotlight on Tuesday as the Judicial Service Commission (JSC) interviewed supreme court of appeal Judge Rammaka Mathopo for one of two vacancies at the Constitutional Court.
Mathopo said it was remiss that briefing patterns, despite lip service as well as actual effort to bring about change, still left female and black lawyers at a disadvantage.
“We should not be having this debate, we had this debate 25 years ago, and it is wrong and remiss of us to be still having this debate,” he said.
Replying to a question from Democratic Alliance MP and former senior prosecutor Glynnis Breytenbach, Mathopo argued that women brought certain qualities, including a capacity for close, quiet listening, to the bench that were intrinsic to the transformation of the judiciary for the better.
“I believe quite strongly that women have a right to be in the space in the same way as men … It would be a travesty of justice if we were to relegate women to second-class citizens.
“There is something different that women bring to the bench. Men may have the rush of adrenaline [but] women sit back, listen and afford litigants a hearing quite properly.”
He said in his experience, female judges displayed deference to counsel and respect for litigants.
“Women play a major, major role in the transformation for the judiciary.”
Yet there was a tendency in some quarters to leave women to deal with matters of matrimonial law.
“Even at the bar there is that pigeon-holing.”
Likewise, Mathopo said, it pained him to see young black lawyers given perfunctory tasks while their white counterparts carried full and diverse caseloads. It is a matter he has taken up with the state attorney, given that the state is the biggest consumer of legal services in the country, and one that Justice Minister Ronald Lamola was actively addressing – yet it persisted.
“I would call the state attorney down the road to say that my observation in court left a sour taste in my mouth … what are you doing?”
“There should be value in the work. Sometimes the state attorney would say: ‘I have briefed so many’ but there is no value in the work.”
Questioned by Lamola on this problem, supreme court of appeal Judge Mahube Molemela said she did not see worthy undertakings on paper translate into altered briefing patterns. Private sector law firms may boost their empowerment credentials by appointing female and black attorneys, but this did not mean they were retained for long or given the work they deserved.
She said it was unconscionable that in South Africa, when it came to the legal profession, something “went wrong” while other countries had achieved full representivity on the bench. The argument that France, for example, was a first-world country, did not hold because fellow African nations had managed the same.
“Here is Zambia, they have done it. Why can we not do it?”
Mathopo said his upbringing in a Limpopo backwater made him keenly aware of the struggle young people from disadvantaged backgrounds faced, and he therefore felt it was his duty to help create opportunities for others and nurture their self-belief.
“Because I am in a privileged position, I should not be kicking the ladder,” he said, adding that he had, however, seen others who achieved success smugly ensuring that young hopefuls had no rung to step on.
Mathopo said his mentoring activities included helping aspirant judges prepare for interviews, and that he had done so ahead of the JSC’s meeting this week to fill vacancies on the bench, though he had his own interview for which to prepare.
He also disclosed, under questioning from Chief Justice Mogoeng Mogoeng, that he had given financial help to a clerk at the Constitutional Court whose circumstances were particularly dire, and had taken time to help him prepare for his exams.
But when asked whether he thought the absence at the apex court of coloured justices was a breach of section 174(2) of the CConstitution, which stipulates that when appointing members of the judiciary, the need must be considered for it to “reflect broadly the racial and gender composition of South Africa”, his answer was a firm no.
“We should look at judges not in terms of colour but in terms of what they bring to the bench,” Mathopo said.
Molemela agreed, when pressed on the issue, that the constitutional provision did not demand a particular composition but was satisfied by consideration of demographics.
Mathopo is perhaps best known for ordering, while at the Pretoria High Court, the release of the so-called “spy tapes”, the wire-tapped conversations that were cited as proof of political manipulation of the timing of Jacob Zuma’s indictment on corruption charges, and prompted the withdrawal of these in 2009.
But his biggest contribution to jurisprudence may be his 2019 landmark judgment, penned early in his current stint as acting Constitutional Court judge, that a person can be convicted for the common-law offence of rape based on the doctrine of common purpose, with the effect that all who conspired to commit the crime carry liability.
He held it was “irrational” not to extend the doctrine, as it applies to murder and assault, to rape.
Mathopo further stated the court would be failing in its duty if it did not show that the judiciary was committed to developing legal principle to advance the fight against gender-based violence and what he termed “the scourge of rape in this country, in particular group rape”.
That was a unanimous ruling, but like fellow candidates interviewed for the vacancies at the apex court, Mathopo defended its practice of minority dissenting judgments — perhaps more strongly and eloquently than the others.
Turning to his experience at the Constitutional Court, Mathopo said it was one’s right to try to bring your colleagues on the bench around to your view when you realised they did not share it, but if you failed they had a right to express their own.
“We cannot muzzle or muffle colleagues … your dissent today may be law tomorrow.”
On Monday, former Human Rights Commission chair Judy Kollapen stressed that judges took an oath of office, and it was inevitable that at times they had to dissent if, on a point of principle, they could not concur with the majority view.
Molemela agreed with Mathopo that there was a clear place for dissenting judgments because these “in most instances do not talk to the present, they talk to the future” and as such may guide lawmakers when they write amendments.
She said there was worth, too, in writing separate, concurring judgments because a plurality of views would serve other courts when they grappled with the same questions in law.
The JSC on Monday also interviewed Alan Dobson SC, who served as a land claims court judge for five years, and Judge Fayeeza Kathree-Setiloane.
There are 11 candidates for the two vacancies at the Constitutional Court. Three more will arise later this year when Mogoeng and justices Chris Jafta and Sisi Khampepe retire.