Last year Supreme Court of Appeal judge Carol Lewis created a storm when she seemed to suggest that racial transformation of the bench had led to a lowering of the quality of judgments issued by High Court judges. It was therefore interesting to see that newly appointed Constitutional Court Justice Edwin Cameron made similar remarks in an interview in today’s Sunday Times:
“Judges, black and white, are troubled by some of the judgments we’ve seen coming from the high courts,” he says carefully, mindful of the fire storm his colleague, Judge Carole Lewis, triggered recently.
She criticised the quality of judges, suggesting that the problem arose when political connections and race took precedence over merit in appointments to the bench. Does Cameron agree?
“Let me phrase this carefully,” he says, sounding like he’d much rather be playing beach ball with the children whose shrieks of joy are loudly audible in the background. “I think that she rightly signalled a widely held concern.
“Being a judge is a tough job technically, a tough job emotionally, a tough job intellectually, and we need tough men and women who can do it.”
Why aren’t they being appointed?
“It’s the tension between racial and gender transformation and technical ability.”
Has transformation been pushed too quickly?
Long pause. “I’ve got to give you an answer with integrity that doesn’t dance between the egg shells …
“I think the goals aren’t incompatible,” he says after another pause. “But I think more attention has to be paid to the tough technical and personal capabilities required of a judge.”
After 1994, racial transformation was “an imperative. If the bench had remained overwhelmingly white after 1994 we would have had a political problem. Now we’ve got a technical output problem.”
Yet I suspect these comments will illicit far less unhappiness because Cameron makes clear that he thinks transformation and technical expertise on the bench are not incompatible. Unlike Lewis, whose remarks could have been interpreted as racist because it suggested that black lawyers were inherently incapable of mastering the kind of technical legal issues required to be a good judge, Cameron shows he is acutely aware of the racial politics in our country and signals this clearly in the interview.
Maybe demonstrates the difference between a garden variety white liberal on the one hand, and someone like Cameron on the other, who has done work for the National Union of Mine Workers and has a keen understanding of the racial injustices in our country.
Perhaps this kind of sensitivity is also strenghtened if one is an outsider – gay and HIV positive? It will be interesting indeed to see how Cameron deals with the difficult gender issues that the Court might be faced with: a clash between gender equality and polygamy, say! I suspect on these social justice issues Cameron will be closer to Sachs, O’Reagan and Mokgoro, than to Ncgobo and Skweyia – despite being quite a traditional black letter lawyer.
Transformation along any lines other than the technical and personal requirements is bound to fail. An equal society means that, when you did not get a job you applied for, you know you did not get that job because the other candidate was simply better equipped for the job than you were. Similarly, if you get the job and someone else does not, it means you were the best candidate for the job. Regardless of our past, which is best left 18 years ago, where it belongs.
South Africa will have problems on the technical front as long as we insist on doing pencil tests before we hire someone.
garg – “An equal society means that”
No – an equal society means everybody has unfettered access to the same opportunities – irrespective of creed, class, ethnicity, race or religion.
“Being a judge is a tough job technically, a tough job emotionally, a tough job intellectually, and we need tough men and women who can do it.”
I’m puzzled by that statement. Are judges special ? How many professions do not require those attributes ? Can you have a brain surgeon or a nuclear engineer or a commercial airline pilot who do not poses those attributes ?
This just goes to show that in everything there can be balance and sensibility. … I think that, taking into account that it takes the average person 18 years from birth to matric, and then another 4 to 7years for tertiary qualification, after the next term of democracy, the playing field would have been leveled as far as the constitutional imperative regarding transformation of the racial imbalance is concerned. Thereafter, race should no longer be a stumbling block or a criterium for transformation. As far as gender is concerned, well, there are several things that need be addressed in this area. My experience is that most (maried, that is) ladies do not want to accept positions that would require them (or their households) to move. Societies where paternalism still thrive also poses a problem despite our advanced Constitution, and the laudable ideas of transformation will not be that easily achieved in that area. There are also certain areas where an imbalance has been created the other way round – just do a sensus count and see how many heads of the different divisions of the High Court, the regional court and the district magistrates court are black. The vast majority at all three levels are black, with a zero representivity of whites in the High Court and regional court. How many women heads of court? There, only in the regional court do they have an almost 50/50 split, in the High Court they have a zero representivity, except for a deputy post here and there. However, in the lower eschelons of all courts, the required rate of transformation has not yet been achieved, and probably never will . One has to ask oneself, why? Here again, one will have to do a sensus count from grade 10 upwards. How many black and female candidates to adulthood are really interested in a career at law – and, how many of them are eventually successful? How many female law graduates are willing to accept positions more senior than their life partners, and which might require of them to move? In the end, so I feel, the major problem lies with a lack of proper career guidance, education and resourcing at the level of education and training. That is what needs to be addressed. Once properly addressed, I think the demographics of the country will be properly mirrored on the bench. And that goes almost for every other trade and industry. Transformation is not something you can fix through constitutional values. And, as long as it remains a constitutional imperative, the tension will remain. The time, I think, has come for the focus to shift from transformation to determination whether a specific person is an ‘appropriately qualified” and a “fit and proper” person for the job. I, for one, will not feel comfortable of getting into a Boeing or Airbus where the pilot is not appropriately qualified and a fit and proper person to do the job, regardless of whether the pilot is black, white, brown, yellow, male, female or gay / lesbian. I would not like to be operated on by an unqualified of under-qualified doctor. I would also not like to be tried, especially in a criminal matter, where the presiding officer is not appropriately qualified and a fit and proper pesron for the job. While the aim of transformation has its pros, it certainly has its cons as well. And, in times where we prepare for election, transformation is bound to be a point of contention to be raised by every political party – but for the wrong reasons. The whole thing should not be approached on an “art for art’s sake” basis, but competency should play an increasing role. … I think Cameron did quite well in the interview.
Prof, I don’t think judge Lewis said that black lawyers don’t have the required expertise to serve as judges. She said that too much an emphasis on transformation may compromise the selection process and hence the quality of individuals who are appointed. It seems to me that Cameron is pretty much saying the same. While formulation and discourse matter, we should not loose sight of the substantial issue at hand.
I think the main problem is that we were quickly wanted to see a “New South Africa” so much that we overlooked important issues. Truth is that the old white is “clever” and black is “bobejaan” mentality still exists today. We will be fooling ourselves if we think all the white judges who worked in the apartheid era have suddenly been transformed. Most of these judges are highly untransformed and racists-which is why most courts still use Afrikaans only-clearly showing that they are true Counter Revolutionaries (yes, i said it!). We still have a long way before we reach a non-racial S.A. Which is why we need more radical transformation policies to fastrack the NDR.
You should ask yourselves why is the media (controlled by …we all know which race!) so sure that the Nicholson judgement is going to be overturned. It is because the SCA have never ruled in favour of JZ-they hate him. Remember they once went along with the ” Zuma had a generally corrupt relationship with Shaik” vomits as was popularly peddled by this naughty media at the time, prompting Squires J to clarify his judgement in public albeit after a year and half he delivered it. Need I say more? We need a serious transformation, in fact, revolution of the judiciary!
Look at the Lion man, Scott Crossely for instance, now these counter revolutionary (yes, again-i say it!) judges found that he is “too shy” to do an already unfair community work to serve out his term. Transformed judiciary is for now only in your dreams mense, which is why President Zuma must test it to its ultimate limit before allowing them to trial-they cant be trusted, at least not yet!
Qualifying a racist point of view does not rob, the point of view, of its poison. Maybe Thabo Mbeki was right when he refused to appoint this man.
spuy – “You should ask yourselves why is the media (controlled by …we all know which race!) so sure that the Nicholson judgement is going to be overturned.”
So how do you explain the black editors only at the “off-the-record” meeting with Ngcuka?
http://www.ozoneblue.co.za/politics/in-defense-of-jacob-zuma-part-1
I’m sorry – it is damn high time to drop the “blame it on white racism” excuse every time our black brothers sell their people out ala Mobutu Sese Seko.
ozoneblue – Thanks for part I. A good read. When can we expect part II?
Spuy – your villainous vile statements have only taken over where that notorious fool, lindelani maseko let go. If you want to be taken seriously, then at least try to make sense, in a logical legal sort of way. This counter-revolutionary stuff-and-nonsense isn’t going to get you anywhere, and puts you in the same category than that other notorious fool, Julius Malema. [Over the weeknend it has beenreported that he, ala Bob Mugabe, rhetorted that ANCYL will defend JZ and will not allow that the ANC be overawed by BRITAIN and its Colonial Forces, nogal!] If the SCA decision today goes against JZ, and if you cannot criticise the judgment from a legal point of view but keep on spewing this kind of racial vomit, I’ll just say: I rest my case.
Nicholson J blown apart! Pierre blog please!
Chris Nicholson is incompetent and was influenced by the Zuma camp to make his judgement. I will venture to say the next member on the CC bench would be someone by the name of Nicholson!
Maybe Lizeka Mda has a credible point, hey Pierre de Vos!?
Mpho, what did you expect, as Spuy said we expected the incompetent fools of the SCA to reverse the Nicholson judgment, have you forgotten how they even put wordes into Squires J’s mouth just because they hate Zuma, they have no credibility whatsoever, especially Crowie AJ!
And so it continues! How tedious. Good judges are the ones who rule in favour of Zuma, rather than the ones that provide reasoned judgements. Thanks for the new definition.
Mpho – Daar is geen salf te smeer aan ouens soos Mdu en Spuy nie! … Please see the implied challenge in my post above – Anonymouse // Jan 12, 2009 at 8:50 am – Now I can say without any reservation: I rest my case. These guys are nothing but misguided fools that know nothing of (and do not support) the rule of law.
THE NPA V ZUMA judgment is available free on line at http://www.saflii.org.
Follow link below
http://www.saflii.org/za/cases/ZASCA/2009/1.html
You will find paragraph13 and more amusing:
“[13]It follows from this that, as the trial judge recognised, ‘political meddling’ was not an issue that had to be determined (para 229 of his judgment). Nevertheless, a substantial part of his judgment dealt with this question; and in the course of this discussion he changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators. Lest his judgment be considered authoritative it will be necessary to deal with these matters. ” per Harms DP
Enjoy your transient victory victory but I doubt if NPA will recharge Zuma, even if it does I doubt if an out of Court settlement is improbably, so either way Zumaphobia lose out! If the current Prez of the country does not appoint a new NDPP, Zuma will have to appoint one when he becomes a Prez, me finds this amusing!
Mdu – A Banana Republic? yes, very amusing indeed.
Mdu – It was interesting that the SCA pointedly stated that Squires had in fact described Shaik and Zuma’ relationship as generally corrupt, although not in those exact words.
And still we wait for Zuma to answer the charges……………….?
@Spuy
Most of these judges are highly untransformed and racists-which is why most courts still use Afrikaans only-clearly showing that they are true Counter Revolutionaries (yes, i said it!). We still have a long way before we reach a non-racial S.A. Which is why we need more radical transformation policies to fastrack the NDR.
Man we got a long way to go with such idiotic statements like this, spuy grow up and maybe look at statrting with urself to reach a non-racial SA.
Statistics
If these figures are not accurate they are substantially correct.
Leaving aside the Supreme Court of Appeal and the Constitutional
Court, in total 134 appointments have been made since 1994, 83
blacks and 51 whites. Of the total of 199 judges (including the
Constitutional Court and the Supreme Court of Appeal), only 25 are
women (12.5%).
some more statistics however based on 2005
http://www.idasa.org.za/gbOutputFiles.asp?WriteContent=Y&RID=1319
very good read.
Chief Justice Arthur Vanderbilt then of New Jersey, United States of America in his book, The Challenge of Reform (1955 Princeton University Press at p. 11) wrote:
“We need judges learned in the law, not merely the law in the books but, something far more difficult to acquire, the law as applied in action in the courtroom; judges deeply versed in the mysteries of human nature and adept in the discovery of the truth in the discordant testimony of fallible human beings; judges beholden to no man, independent and honest and equally important – believed by all men to be independent and honest judges above all, fired with the consuming zeal to mete out justice according to law to every man, woman and child that may come before them and to preserve individual freedom against any aggression of government; judges with the humility born of wisdom, patient and untiring in the search for the truth and keenly conscious of the evils arising in a workday world from any unnecessary delay. Judges with all these attributes are not easy to find, but which of these traits do we eliminate if we are to hope for evenhanded Justice?”
Harms judgement contradict the racist stereotype by Carel Lewis and Cameron that because a judge happens to be Black, he therefore is not good enough. One can just imagine the racist claptrap that would have being raised had Nicholson been a Black judge.
“Maybe demonstrates the difference between a garden variety white liberal on the one hand, and someone like Cameron on the other, who has done work for the National Union of Mine Workers and has a keen understanding of the racial injustices in our country.
Perhaps this kind of sensitivity is also strenghtened if one is an outsider – gay and HIV positive?”
Edwin Cameron was the person pushing for the casualisation of the Wits University cleaners as part of the Wits board.
This removed them as employees of Wits, massively reduced their salary and made them employees of small cleaning companies.
One of the consequences of this was the workers could no longer protest on campus over pay, but had to do so at their employers offices (where they never go) in Randburg.
You wont find many people in the trade union movement singing his praises.
Which just goes to show that being gay (or black for that matter) does not endow you with enduring progressive genes.
Unlike Lewis, whose remarks could have been interpreted as racist because it suggested that black lawyers were inherently incapable of mastering the kind of technical legal issues required to be a good judge, Cameron shows he is acutely aware of the racial politics in our country and signals this clearly in the interview.
After being asked numerous times in your previous posts to link what she said to this assertion of yours, and failing to do so, I find your repeating of this irresponsible and vindictive.
Everything seems to have failed in my opinion with regards to transformation within the judiciary.
It is very important that the past be corrected, and not merely, labeld and shelved. Apartheid was a law. This law was interpreted and exercuted by the very same judges that find themselves seated in the very same seats but only under a different flag.
The myth that ‘Black’ people can’t think should be dispelled. This myth funny enough is carried out within the black race itself…where a black client would rather go to a white lawyer instead of a black one who has similar legal experience.
Since the judiciary is independent, most of the affirmative action laws do not seep through. It is not the courts that I am really concerned about, but rather the lagal field as a whole.
Peter // Jan 12, 2009 at 12:59 pm
“It was interesting that the SCA pointedly stated that Squires had in fact described Shaik and Zuma’ relationship as generally corrupt, although not in those exact words.”
Harms was far more witty than to use poor quotes from sloppy journalists Peter. he said, to borrow a phrase from Kemp’s papers…