South Africa's Misguided Approach to Judicial Transformation
Introduction
Good morning. I am very grateful to be here, speaking on the topic of judicial transformation. This is an increasingly important legal and political question that the new South Africa must grapple with. Today, I hope that I can add some value to this debate.
Before I begin, I would like to thank two groups of people.
Firstly, the South African Journal of Human Rights (SAJHR) whose 30th anniversary is the reason for this gathering; the WITS Law School; the Centre for Applied Legal Studies (CALS); and JUTA Publishers. You all do great work and, together, have offered many of us, especially young lawyers, a unique platform to contribute to important legal debates affecting SA today.
Secondly, I would also like to thank the Oppenheimer Memorial Trust (OMT) and the Helen Suzman Foundation (HSF). The former for the reason of logistics in graciously supporting my efforts to attend this conference from Oxford. The latter for giving me a unique ringside seat to some of the most exhilarating legal fights of the new dispensation. This, especially given how difficult a political climate it is to do what the HSF does.
I mention politics in the context of law deliberately. During Apartheid, we saw the legitimacy of a flawed legal system being tested in the court room because there were few alternatives. Many would argue, as I do, that this is also the case today.
Whatever your opinion on keeping politics and law separate, I would like to think that they both, represented by the Executive and Parliament, on one hand, and the Courts, on the other, have a role to play. Our Constitution is clear: the democratically elected government will represent the will of the people while being held accountable, not only by the people themselves but, by the courts too.
It is in this context - the interplay between will of the people and the rule of law - that we must consider judicial transformation.
How Do We Think of Judicial Transformation?
It is clear that two schools of thought are prevalent in the JSC's thinking of what transformation means. One is that it is a representative exercise, short-term, and immediate. The other is that it is about systemic change, long-term, gradual.
What differentiates these two is a question of priority: how the system looks as the primary concern or what the system does.
Indeed, the former argues that by instituting demographic change you will necessarily achieve the systemic reforms that are so desired. (However, this is not always the case: as our economic experience shows - the creation of a black, wealthy, elite for example has not meant mass empowerment)
Meanwhile, the latter argues that by attacking the ground rules first, you will necessarily change the look of the institution, because you are trying to change the system altogether. (However, we know that, too, isn't necessarily the case)
The truth lies somewhere in between the extremes: it would be foolish to not acknowledge, and concede, that representivity and systemic change are needed to bring about full transformation. Had we not been aware of this post-1994, the judiciary's legitimacy, the very institution now tasked with protecting us from executive excess, would be jeopardised and the whole system would be at stake.
Somehow, we avoided doomsday. We avoided a black-majority government demonising a largely white judiciary, thus undermining the fundamental principle of the separation of powers upon which our whole system is based. Equally, we did not have a largely white judiciary being deliberately obstructionist to the changes that the black majority had to introduce.
Some may ask why this is the case? There are, to my mind, two explanations - and possibly more. The two I focus on, though, are the personalities and the politics. Admittedly, we cannot deify Nelson Mandela anymore: while his, and others', acceptance of constitutional supremacy was crucial, it cannot explain it all. Rather, it was clear that right out of the starting blocs, the system was changing. Why? Because those who did not fit the Apartheid mould - especially black judges - could now be appointed. Once the racial glass ceiling had been removed they were free to accede to the high office they would have otherwise achieved naturally. From this point of view, transformation was natural and easy.
And, despite the political pressure to appoint more black and female judges, mostly because they were black and female, the Judicial Service Commission (JSC) held firm. The JSC resisted the temptation to treat section 174(2) of our Constitution, the so-called transformation clause, as dispositive of cases where a white male and non-white male candidate came up against each other, either equal in strength or with odds largely in favour of the white candidate, and to always appoint the non-white male. The JSC favoured, valued, and upheld merit as the base line for contention. Many consider this our golden era of constitutionalism.
Enter Mbeki
The JSC, under the leadership of a strong judicial presence, was, thus, keen to change but uncompromising. This in spite of the fierce criticisms aimed their way about their slow pace of change.
This is not to say that the JSC may not have played politics in the early days and made some appointments that it should not have. The JSC, like us, is imperfect. But, the JSC's expedience and pragmatism was the exception rather than the norm.
I do not pass judgment here. Although, suffice it to say, I think I can appreciate the case for expedience and pragmatism, more, in the immediate aftermath of transition as opposed to 20 years later. As I readily acknowledged - representivity is part of transformation, and legitimacy too.
But, under the administration of President Thabo Mbeki, specifically, things began to change. This period marked the start of two deliberate processes: the reracialisation and politicization of the state. This is, of course, no better captured by the ANC's policy of cadre deployment which bloomed during his tenure.
While the consequence of this may have been that South Africa, especially our independent institutions like the civil service, became more racially and politically polarized, few people acknowledge just how pliant the state became to Mbeki's authoritarian office. Thus, while race and party affiliation were important; primarily, it was loyalty to him that affected whether you got promoted or not. The method of attaining his legacy was to use cadre deployment - the JSC being no exception.
It was during this time that politicians and presidential appointees became more strident in breaking rank with the judges, who were traditionally deferred to, so that their preferred candidates may get in - no matter what concerns were raised. It was only a matter of time before the constitution of the JSC started affecting the judiciary itself. The process of state-wide race reductionism, and the construction of crude one-size-fit-all identities, had begun.
Softly, softly
This, I believe, is the root of what the HSF contends is the JSC's soft quota approach to judicial transformation, as typified by the JSC's reasons in the case of the non-recommendation of Jeremy Gauntlett, SC.
It is manifestly unlawful. It is deeply flawed. It is a dangerous approach that treats (most/all) white candidates as being anti-ANC and (most/all) black candidates as being in favour of it. And it is rigidly applied.
But it is not stupid. Several appointments are made that pacify the ‘liberals' in order to make sure that they are satisfied - to some degree - and that the system as a whole has some credibility - despite the active attempts to hollow it out.
How Does This Affect Independence?
This means that, with an executive-minded body in charge of appointment, an acceptance of the prevailing agenda must be accepted in order to attain elevation/advancement.
For prospective judges (i.e. candidates seeking appointments), it means several things.
For white candidates, it means that many of the experienced ones actively turn away. After the humiliating and ignominious treatment of Gauntlett, this will be the case even more. And, even some with impeccable democratic credentials may not be so lucky (assuming, of course, that this is a legitimate quality for judicial appointment, and that we can define it). If we give this a generous interpretation and assume it means a demonstrable commitment to the values of the Constitution that is not enough. Geoff Budlender, SC, comes to mind.
(Admittedly, white candidates of this caliber are experienced for historical reasons which privileged them. But we cannot ignore that technical merit and ability is a foundational ability of a judge)
For black candidates, it is more pernicious. Race and gender are often used as a fig leaf for executive-mindedness. And unless black candidates can demonstrate their loyalty to the government (often at the expense of work opportunities), they too can consider appointment a non-starter.
Current judges, too, are affected by this mentality. Unless they compromise their beliefs and do not hold the government accountable too often, then promotion may be a possibility. But, should they be on the opposite end of this spectrum, chances for promotion are scant. Most recently, the circumstances of the non-promotions of Mr Justice Plaskett to the Supreme Court of Appeal and Deputy Chief Justice Moseneke to the Chief Justiceship illustrate this clearly.
When the pool of prospective candidates is cowed into submission then we should worry.
It is good to see, though, that there is some judicial fight back to the way in which race, specifically, is contemplated in terms of transformation. Most notable are the comments of Moseneke DCJ and Cameron J in their separate judgments in Barnard when addressing soft quotas.
Status Quo
This badly understood, and badly applied, construction of transformation also has negative effects in the wider system. The profession escapes serious questions of retention, briefing patterns, promotions, etc. The government is allowed to escape its responsibility at improving the most direct way to increase the talent pool: our education system. And the academy avoids having to seriously question what their role is in all of this.
All because this disastrously imperfect system allows it to create a veneer of change.
Conclusion
And so, many of us pat ourselves on the backs for the minimal effort we put in to try and change things. So long as we can identify one good appointment among many lesser ones, that satisfies us. That should not be the case.
The greatest irony when bad appointments are made, along strict racial demographic lines, is how individual error is attributed to group incompetence. The racists who do not accept transformation as necessary and inevitable, and who don't need evidence to support their prejudice, use this to tar all appointees with the same brush and convince otherwise reasonable people that transformation is wrong. Just like how they do when they attack affirmative action and BEE.
Black candidates should not be sacrificed on the political altar. Indeed, many are worthy and more than deserving. But many may find themselves forced through so that they narrow politics of representivity can rule the day. If this kind of politics is not abandoned, and we all play a part in dismantling it, then the credibility of our courts is at stake. We must rise above the parochial blinkers that Apartheid forced onto us and see the rainbow nation dream that lies ahead.
The text, above, is based on a speech delivered by Kameel Premhid, a Research Fellow of the Helen Suzman Foundation, at the 30th Conference of the South African Journal of Human Rights at the University of the Witwatersrand School of Law. The speech is based on Premhid's paper of the same name, available here.
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