This is not a new phenomenon in South Africa. But underlying the debate is much more than the quality of the country’s judges. It is also about race and gender. South Africa’s judiciary remains dominated by men and has a higher proportion of white judges compared to the country’s race demographics.
The public debate on the quality of High Court judges started receiving public attention in earnest during the formal interviews of the current chief justice, Mogoeng Mogoeng, in 2011. When he was nominated, his previous judgments as a High Court judge were thoroughly researched by various public interest organisations. The findings were damning.
Questions were asked about how he became the judge president of the North West High Court division and how he eventually made it to the Constitutional Court.
Public law professor Richard Calland described the episode as:
… a class warfare; a cultural clash between the epitome of the modern, progressive Constitution … and the reactionary, socially conservative world view of another place.
Perhaps the debate about the quality of High Court judges after the high-profile Pistorius trial reflects a different cultural clash in South Africa. This is one in which the un-transformed legal profession all too often associates incompetence with black people.
The need to defend Masipa speaks volumes
Black lawyers are regularly stereotyped and their competence questioned. The differences in judicial opinion, similar to the outcomes in the Pistorius case, are elevated to unfortunate magnitudes to portray the transformation of the judiciary as inherently bad.
The Supreme Court of Appeal in the Pistorius decision was conscious of this point. It recognised that the successful appeal might generate adverse commentary about Judge Thokozile Masipa, the black female judge who heard the case in the High Court. In particular, it was clearly concerned about questions being raised about her abilities as a judge.
The Supreme Court emphasised that:
… the trial judge conducted the hearing with a degree of dignity and patience that is a credit to the judiciary. The fact that this court has determined that certain mistakes were made should not be seen as an adverse comment upon her competence and ability … the fact that the appeal has succeeded is not to be regarded as a slight upon the trial judge who is to be congratulated for the manner in which she conducted the proceedings.
This well-intended concluding paragraph is both ironic and unfortunate given the alarming way in which the court of public opinion disagreed with Masipa’s initial judgement.
There is no doubt that social commentary at the time was also racially prejudiced.
It is unfortunate that the Supreme Court had to anticipate (rightly) the public discourse that might arise from its judgment, and that it felt the need to defend Masipa’s competence.
Had she been a white male whose decision was overturned, the Supreme Court would not have been compelled to defend him. His competence would not have come into question.
The Supreme Court’s concluding paragraph is a sad reflection of the fact that South Africa remains an inherently prejudiced society in which incompetency is associated with race.
It also puts the spotlight on transformation of the legal profession as a whole. Transformation is about creating conditions that are open, bias-free and non-hierarchical. It is also about removing prejudices so that talent can flourish, unhindered by assumptions often linked to race and gender.
Diversity is seldom debated as a pressing issue in the legal profession. The lack of diversity is usually only raised after interviews by the Judicial Service Commission for the appointment of senior members of the judiciary. One of its roles is to ensure the transformation of the judiciary. How it balances the need for racial and gender diversity often comes under scrutiny.
The commission has done fairly well in increasing the number of black judges. But the situation remains dire. There are currently only five female judges out of 24 at the Supreme Court and three female judges out of 11 at the Constitutional Court.
What does transformation really mean
The Centre for Applied Legal Studies, which is based at University of the Witwatersrand and uses law to protect human rights, has rightly affirmed that talent and diversity are not alternatives. Diversity after all is not inconsistent with talent and ability.
For a robust debate about the quality of High Court judges perhaps there first needs to be an understanding of three questions:
* What is meant by transformation?
* What are the barriers to transformation?
* How should these barriers be addressed?
Transformation is often understood in the legal profession, as well as socially, as the appointment or promotion of black people to positions they would otherwise not qualify for. But as the centre’s report advocates:
… transformation should be about the removal of barriers that hinder talented lawyers from opportunities to develop and gain skills to advance their careers.
Barriers to transformation span across the different stages of a lawyer’s career. Black law graduates struggle to find jobs and have limited connections to established members of the profession. In addition, the cultural alienation in the legal profession affects the rise of black lawyers. The centre also identifies:
* covert racism;
* briefing patterns that exclude black lawyers; and
* the “trailblazer phenomenon”, in which a few black lawyers are used as the benchmark in assessing other black professionals.
All these affect the rise of competent black lawyers to the bench.
Transformation of the judiciary is inextricably linked to the transformation of the legal profession. To settle the debate about the quality of High Court decisions, we first need to understand the barriers to transformation and then debate the various patterns that continue to entrench them. We must also be honest and accountable in our debate so that we can begin to find sustainable solutions.
