HETN Response To "On transformation and the legal profession" By Izak Smuts.

The Higher Education Transformation Network,(HETN) acting on behalf of its alumni members , notes with dismay the views of Advocate Izak Smuts SC on transformation of the judiciary delivered at a recent forum hosted by Ndifuna Ukwazi and as reported in Politicsweb on 12 September 2013. Advocate Smuts purports to lecture on the rule of law and the imperatives of the constitution. He toots his own horn and says when he was on the JSC he questioned candidates about their understanding of constitutional principles, such as the rule of law and the values and principles of the constitution.

He critiques the lack of focus on these questions by the other commissioners. The suggestion been that candidates selected by the JSC did not understand the values and principles of the constitution.

Perhaps it never occurred to Smuts that others did not take him seriously, given his historical baggage and his incessant fight today to preserve white male privilege in the profession. Perhaps it never occurred to him that his idea of the rule of law, separation of powers or the imperatives of the constitution were not shared by the other commissioners.

Smuts showed no activist or progressive role against apartheid. He played absolutely no role in bringing about the democratic dispensation in South Africa. As a matter of fact, he was the advocate of choice of Oupa Gozo, the tin pot dictator of the Ciskei, known to shoot people for standing on the wrong side of train platforms.

When Smuts wants to talk about the rule of law, he needs to comprehend that under apartheid there was no two sides. Apartheid was a war crime and a crime against humanity. He defended the worse apartheid perpetrators. When former slave masters lecture to the former slaves what freedom means, the irony makes one choke. We all need to reach out for George Orwell's Animal Farm.

One does not remember Smuts atoning for his past. It remains a mystery when and how Smuts achieved his metamorphosis as a democrat let alone a credible spokesperson for the rule of law. He like so many such as Judge Harms, Judge Kriegler, Advocate Hofmann and Advocate Gauntlett, who share similar ideological positions,  would prefer not to ruminate about the past. It becomes a problem when this group approach important legal and political issues based on what is best for them which leads to a deconstruction of his present day message.

Apartheid was an institution based on privilege for a white minority and the connected relegation of blacks to a position of inferiority, across every sector and work of life. If past conduct and associations is an indicator of where Smuts derives his inspiration, lets dissect the essence of his present day arguments.

Today, Smuts professes to speak the language of the constitution but adopts positions that seek to preserve the privileges of white males with a hollow sense of equality. Smuts writes "I record that I approach the issue of transformation of our legal system unashamedly from the point of view that our judiciary should be drawn overwhelmingly, if not exclusively from the ranks of those who practice in our courts."

 He further submits he is "convinced that our courts are best presided over by those who have honed their skills in those courts - who have learnt over the years to assess evidence, to dissect and analyse arguments, and to appreciate what the rules and laws of procedure require of a smooth-functioning court." In essence, what Smuts is asking for is judges must be appointed from within the ranks of advocates who have a subset of skills important to judging.

Let's be clear, on where he derives his model for selection of judges? It is based on the British colonial model of selection of judges from within the ranks of senior advocates, a perspective that does not exist in most of the world.

We have adopted a constitution that marks a radical departure from elite based colonial practices. If Smuts surveyed the world, he would find that his approach represents one model, and a model that is antiquated and largely discarded for very cogent reasons to be addressed later.

Suffice it to say, there is nothing special about advocates or barristers in the British model. They are merely trial lawyers which represents one set of sub skills, albeit important, in the legal profession. The skills that trial lawyers are likely to have, which Smuts extols are rules of evidence and courtroom procedure. If Smuts engaged in serious jurisprudence and studied  comparative practice, he would find that there are other important skills which are acquired in a variety of contexts.

He would also learn that these forensic and analytic skills can be acquired in a variety of settings including working as a lawyer in a non-litigation contexts, academia and importantly judicial training programs. From a comparative perspective, some of the "best" judges have come from government and academia in other jurisdictions.

Many countries have resorted to formal judicial training programs to train judges. These training programs are led by legal organizations with judicial involvement and leadership. In these programs, trainees participate in court trials, review legal publications and complete online exercises covering a variety of areas including rules of procedure, evidence and how to write an opinion.

In some jurisdiction, judges are required to undergo continuing education courses throughout their careers to stay abreast about changes to the law. The training program increases the pool and quality of judges for reasons that Smuts conveniently ignores. His view that judges should be chosen exclusively from within the ranks of trial lawyers is out of step with mainstream practice. As a matter of fact, there are qualities and stereotypes about trial lawyers that make them particularly unpopular in some jurisdictions.

Selection of judges is not based exclusively on forensic skills. There are other skills, beyond knowledge of courtroom procedure, which other constitutional democracies recognize as important in judging.

They include but are not limited to analytic skills, excellent character and integrity, judicial temperament, mental and physical capacity to discharge the functions of a judge, a record of community involvement, commitment to improvement of the quality of justice, devotion to the values of the constitution, devotion in understanding the plight of the poor and marginalized in accessing the courts and ultimately justice, administrative ability and demonstrated sound judgment in one's professional career.

It is interesting that Smuts and his ilk denigrate some of these criteria, for example when the JSC passed over a certain nominee by the name of Jeremy Gauntlet, because of a perceived lack of judicial temperament. They also cry foul when certain nominees are questioned about their judgments and affiliation with organizations with racist pasts and their devotion to the values of the constitution. 

In the South African context, a judges past politics shows their moral compass. Almost every democracy recognizes this as a fundamental criterion. It shows the values which a judge brings to the bench which is equally important as the forensic and technical skills.

Those that showed no moral compass in the past would like to completely ignore that conversation. Instead, Smuts and his ilk want the JSC to evaluate judicial nominees based on narrow criteria of these elite. They falsely suggest that the only way one can acquire skills about rules of evidence and court room procedure is by being an advocate. Comparative practice belies that notion.

Despite the shift in our constitutional paradigm, the legal profession is still organized based on the elite, colonial model of a bifurcated legal profession. Smuts and his ilk claim a constitutional right of autonomy and freedom to practice their craft under this colonial based model.

Based on the colonial based model, they want judges, in his words to be "exclusively" selected from those who practice in the courts, which mean overwhelmingly white male advocates. He articulates an ingrained bias for institutions and practices the consequences of which maintain white male privilege.

Let's be clear it is a model based on colonialism. It's a buddy buddy system, consisting of an old boy network, which controls entry into the profession, starting with who gets pupillage and who is rewarded with the status of Senior Counsel.

These choices are made in an opaque manner and have great financial and career consequences. In our constitutional democracy, we insist on transparency and equality. If we are to believe Smuts and his ilk, they are immune from obligations of equality and transparency.

Smuts offers some ideas to tinker with the system to get more blacks and women into the profession. He suggests that "the organized profession could and should certainly do more to provide opportunities for historically disadvantaged practitioners." The conversation should be about changing the colonial institutions and its attendant culture and not co-opting a few more blacks and women into the elite system.

The institution of the Bar partakes of the British class and elite based system. It precludes advocates from interacting with the public directly. If an advocate breaches this rule, they run the risk of serious sanction. The absurdity of maintaining this practice is beyond reason.  It represents the worse of the British class and elite system. It does not conform to our constitutional values.

Smuts and his ilk want judges to be selected from this elite group of lawyers that are disconnected from ordinary people.  Courts are the third branch of government. Lawyers are officers of the court. Democracy cannot operate effectively where important actors in the third branch of government are separated from the people they are supposed to serve.

The Bar prefers advocates to operate in a rarified stratum, with a barrier between the advocate and the public suggesting that the advocate would be more objective. What the old white boys at the Bar fail to understand, in our constitutional democracy, lawyering does not entail only rules. It entails an understanding of history, people's emotions, struggles, aspirations and contestations about how the law should address these complex concerns. Our social contract requires lawyers not in the mold that the Bar has historically produced.

Comparative practice demonstrates that interaction between lawyers and the broader society produces better and more sensitive lawyers, which is what our social contract requires.

Alas, Smuts complains about the Legal Practice Bill (LPB) and what he labels as government control over the legal profession. How three government appointees on the governing council of over twenty members, undermine independence of the profession is something unfathomable.

Despite the hyped rhetoric, LPB is not a heavy handed law. It is a nuanced, incremental and long needed response which emerged out of prolonged consultations.

Smut and his supporters that oppose the LPB are concerned about the loss of privilege.

From the perspective of progressives, the bill does not go far enough. Smuts and us may find common ground on the following: We agree government has not done enough to change its briefing patterns; we concur that reform of legal education is extremely important in realizing the goal of good lawyering skills.

However, Smuts loses credibility when he puts all the blame for the disadvantage of blacks and women at the door of poor education. For example, white women experienced the same quality education as their white counterparts.

Yet, white women also suffer tremendous disadvantage in the profession. The primary problem remains institutional in nature. It is the institutions that need to be changed. Smuts resists every attempt to change the institutions and fights to hang on to white male privilege.

Smuts talks about judicial nominees committed to the values of the constitution. If truth be told, Smuts views, disparage our constitution and democracy.

As in the past, Smuts continues to serve as a pugilistic force of the right wing, offering prescriptions which preserve the interests of his group, control over the legal profession by white males and their right to vet, select and be selected as judges. If Smuts believes that the government under our constitution does not have a right to direct that institutions be changed to do away with retrogressive practices, he fundamentally misconstrues the nature of our constitution.

Not only has the legislature the power to adopt laws which transform private relations, section 8 of our bill of rights places a duty on a court, under certain circumstances, to regulate and make the bill of rights applicable to private relations. Furthermore, section 39(2) calls on our courts to develop the common law. Under our bill of rights, there is no absolute right to autonomy.

If someone in their exercise of autonomy infringes on the fundamental rights of others, this is constitutionally infirm. The elites in the legal profession elevate one principle above all others, no doubt to protect their privileges. Not viewed in context, the claim of an absolute right of autonomy and association is a conservative principle to protect vested interests.

On briefing patterns Smuts states the "established attorney firms, dominated by white male attorneys often rely upon the old school tie network, which militates against opportunities for black and female advocates and correspondent attorneys attempting to make their mark. There is nothing remarkable about this, and it is not peculiar to South African society. People work more comfortably with those they know and understand."

Concerning the slow pace of transformation in private sector briefing patterns, Smuts says "the right of litigants to choose their legal representatives is internationally and constitutionally recognized, and no government dictate can legitimately be imposed upon private practitioners to change their briefing patterns."

Our constitution applies both horizontally and vertically. Smuts and his supporters do not understand the imperatives and application of our constitution which tells us that Freedom of association or autonomy has no sacred character permits for the casting of blacks and females in a perpetual state of inferiority in the practice of their trade.

Clever politics and lawyering would tell us that it is not a choice between a diktat versus autonomy. There are many tools available to change racist behavior and briefing patterns including innovative incentives to change the context for the end of racial and gender discrimination.

If Smuts is really interested in transformation, he will use his "forensic skills" to come up with solutions and not false binary choices. The government can use the considerable arsenal in its tools to create incentives through the carrot and stick approach to change what Smuts terms people working "more comfortably with those they know and understand" which is really a description of people comfortable with their own race or gender.

If Smuts really believes the government does not have the right to use its power to change racist behavior that keeps certain groups in society in a subordinate status, he fails to comprehend our transformative constitution and its reach, which extends to private action.  

Smuts says that he supports a "genuine transformation from a society founded on race and gender discrimination, suppression of human rights and an authoritarian system of government, to one premised upon human dignity, equality, the advancement of human rights and freedoms; constitutionalism, and he rule of law, with all that encompasses, including an independent judiciary and an independent legal profession to serve that judiciary."

Upon examination of his prescriptions, Smuts presents us with dubious propositions which are inconsistent with the normative philosophy of almost every subject he claims to be in favour of.  It's problematic when you speak in favour of the constitution but present actions, philosophies and programs that suggest otherwise. If you think we are gullible, you better think again.

Statement issued by the Higher Education Transformation Network, September 19 2013

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