Open Letter to Mzo Tshaka regarding the debate on transformation

Dear Mzo,

RE: TRANSFORMATION OF THE LEGAL PROFESSIONS AND THE JUDICIARY.

At last! A critical comment on my complaint about the Chief Justice's conduct in descending into the arena of pending litigation that does not pin horns and a tail on me. It is premature for me to engage publicly regarding the complaint itself. On the information at present available, the advice I have received is that the findings on the complaint are both procedurally and substantively unsustainable.

The complaint is not about transformation of the legal professions and the judiciary; it is about the alleged misconduct of the Chief Justice. There is a difference. If the Chief Justice had criticised the Higher Education Transformation Network, instead of the Helen Suzman Foundation and other NGOs that litigate against the Judicial Service Commission, he would have been just as offside as I contend he was for making his speech to those present at the Advocates for Transformation meeting in Cape Town in July.

It is, as you suggest, nevertheless important that the debate on transformation should not be avoided.

Unfortunately, what I call "the ‘how to' of transformation" is being neglected in much of the current debate; I sense there is common ground between us.

It is to be hoped that the following propositions are all common cause. [Where I refer to sections of the Constitution I preface the section number with the letter "C"]:

1. Since 1994 the people of South Africa have been living in a new and different dispensation, a multi-party constitutional democracy under the rule of law in which openness, accountability and responsiveness are foundational values [C1].

2. Ours is a non-racial, non-sexist order in which the Constitution and the rule of law are supreme [C1 and C2].

3. The vision of the new order introduced in 1994 and cemented in the national accord which embodies the Constitution is a nation united in its diversity that is determined to heal the divisions of the past [C Preamble].

4. We all enjoy the benefits of a justiciable Bill of Rights in which respect for human dignity, the promotion of the achievement of equality and the enjoyment of the freedoms guaranteed to all in the Bill of Rights is the new order of the day [C Chapter Two read with C1 and particularly C7(2)].

5. Everyone is free to choose a profession [C22].

6. Unfair discrimination is prohibited [C9] but measures to promote the achievement of equality are allowed for individuals and groups, of no particular race or gender [C9(2)], who are "disadvantaged by unfair discrimination".

7. Fair labour practices are entrenched [C23]

8. Everyone is entitled to a basic education [C29]

9. The judiciary is composed of appropriately qualified, fit and proper women and men [C174(1)]

10. The need for the judiciary to reflect racial and gender composition of society "must be considered" when appointing judicial officers. [C174(2)]

11. It is the task of the Judicial Service Commission to recommend candidates for the Bench to the President who appoints judges [C178]

12. Decisions of the JSC must be supported by a majority of its members [C178(6)].

13. Discrimination on grounds of race or gender (inter alia) is unfair unless it is established that the discrimination is fair [C9(5)].

14. The courts are independent and subject only to the Constitution and the law, which they must apply without fear, favour or prejudice [C165(1)].

15. Interfering with the functioning of the courts is prohibited [C165(3)].

16. Measures to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts are required of all organs of state, which includes the JSC [C165(4)]

It is surely best practice that judges should be drawn from the ranks of senior counsel and senior attorneys. The experiences of life and law that senior practitioners usually accumulate will stand them in good stead to perform the functions of a judge admirably. The quality of justice so dispensed enhances the legitimacy of the judiciary in the eyes of the litigating public.

Serving the interests of justice is the primary purpose of the legal professions and the judiciary. This is why the courts are beholden to nobody and "subject only to the Constitution and the law" [ C 165]. We do not have the educational institutions nor the tradition of a career judiciary, such as is found in many countries in Europe.

The legal professions are the nursery of the Bench. Rare exceptions from academia do adorn the Bench, but by and large it is the professions that are the source from which judges must be drawn. It is accordingly important to look at the education, training, skills development and programmes available to lawyers in general and aspirant judges in particular.  

I was encouraged to hear an HETN spokesman speak out on the need for training programmes during a panel discussion for broadcast on the "Judge for Yourself" show later this week. Quite so. The four year LL.B. has not succeeded; the basic education system is delivering too few suitably functionally literate matriculants to the universities and the universities are not, all too often, nurturing excellence in law graduates.  

When in 1998 the late Arthur Chaskalson, suggested a system of internship for lawyers, I wrote welcoming the suggestion and made proposals on how it could have been integrated into the system of pupillage then in place. My contribution to the debate was published in the March 1999 edition of Consultus magazine and is also on the "Chief Justice" page at www.ifaisa.org to which you refer.

Unfortunately the idea of internships, which is a great way of building collegiality, nurturing talent and providing mentorship, fell on barren ground. It is important to build a strong core of legal professionals from the bottom up. These days it is hard to find articles of clerkship, too many new graduates who can't find articles attempt life at the Bar too early in their careers with predictable results.

Many of the newly qualified black graduates who do come through the multiple challenges in the system, either through caution or head-hunting join government or get snapped up by business and industry. The quality and quantity of candidates for the Bench suffer as a result. Transformation of the judiciary should not be an overnight or "top down" process but should be "bottom up" to be sustainable. It takes twenty years to garner 20 years of experience. There are no short-cuts.

We all have to face the fact that forcing "square peg" candidates into "round hole" vacancies on the Bench threatens to break the system rather than ensure its dignity, accessibility and effectiveness. The words of Cachalia and Lewis, both Judges of Appeal, bear concerned and well informed testimony to this. The former complains of "affirmative action chickens coming home to roost" and the latter points to grave miscarriages of justice attributable to the lack of skill of newly appointed judges who owe their elevation to the JSC's particular and highly contested interpretation of C174(2). It does not help the candidates, the administration of justice and the public welfare to force square pegs into round holes.

The modus operandi of the JSC is the subject of pending litigation brought by the Helen Suzman Foundation and in which the HETN is contemplating an intervention. The proper interpretation of C174(2) in a non-racial, non-sexist order with the attributes listed in the numbered paragraphs above can surely not include the type of practices that the JSC has been guilty of in the recent past. Refusing to fill vacancies because only white male candidates are available is irrational, unfair discrimination and, more importantly, no way to ensure the effectiveness of the courts.

Transformation should be a matter of affirming opportunities, not outcomes. Sustainable transformation of an impartial and independent judiciary that is able to maintain its reputation for excellence and serve the interests of justice for all in South Africa is critical to our success as a nation.

Perhaps aspirant judges should be required to sit an examination or at least be tested for their competence to do the work that is expected of them.  It is not sustainable in the long run to take chances with weak or mediocre candidates with "potential" when there are more meritorious candidates available. We need to create a pool of meritorious candidates through education, skills development and training of the kind that we do not have at present.

The notion of racial entitlement was wrong under apartheid; there is no room for it in any form in our new non-racial, non-sexist democratic order.

Nurturing the rule of law is fundamental to the protection of human rights and the proper administration of justice. Our democracy depends on the appointment of independent and impartial judges of integrity, impartiality, independence and courage.   

When I refer to the rule of law, I understand it to have the meaning given it by the World Justice Project:

"A system in which the following four universal principles are upheld:

I The government and its officials and agents are accountable under the law

II The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.

III The process by which the laws are enacted administered, and enforced is accessible, fair and efficient.

IV Justice is delivered by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve."

The current trends in the JSC in not satisfying criterion IV are cause for grave concern. It keeps losing court cases. The JSC "may advise the national government on any matter relating to the judiciary" [C178(5)] but it has done little to advise government on how to increase the pool of suitable talent available for appointment to the judiciary.  

I should point out to you that I have not been a member of any Bar since 2006. My work in the NGO sector renders this impossible. I have no ambition to become a judge and I am not actuated by self-interest but devote my time to exacting accountability wherever and whenever it is in short supply.

Your intervention, published by politicsweb on 23 September, did not delve deeply enough into the "Chief Justice" page on www.ifaisa.org . There you would have discovered that as long ago as 1999 I welcomed the formation and aims of AFT. I complained constructively about the lack of transformation of the profession to which I then belonged.

I made some suggestions that, had they been adopted, would not have found the nation in the difficulty in which it is at present because now the "cupboard is bare" when it comes to searching for new judicial officers who meet and exceed the criteria laid down in the Constitution.

I hope this letter helps constructive and productive interaction. Finding suitable judges is a long term project that needs to be embarked upon "bottom up" if the existing good reputation of the Bench in this country is to be maintained.

Yours sincerely,

Paul Hoffman

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