Quote of the week

As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
6 February 2007

Black judges complain about criticism

The Weekender newspaper reported this weekend that some black judges at the Pretoria and Johannesburg High Courts were unhappy about senior colleagues and the Judicial Service Commission (JSC) discussing and airing bad decisions made by “inexperienced” members of the judiciary.

The Weekender:

The petition complains about The Weekender articles which quoted appeal court judges querying a number of decisions by “inexperienced” high court judges. The appeal court judges said these decisions indicated fundamental ignorance of basic legal principles or were in some other way seriously bad.

During the October JSC interviews, two candidates for promotion to the appeal court, judges Azhar Cachalia and Pete Combrinck, were also questioned on these issues and the 15 have objected to their answers.

The petitioners said that the chief justice should “take the lead in dealing with this negative reporting”. “Remember, we see these reports as impacting negatively on us, and as a direct challenge to us, especially the black judges”.

This is a delicate matter that reminds us how difficult and complex the process of the transformation of the bench has been and will continue to be in a divided and cultrally diverse country like South Africa.

There is a constitutional mandated need for the racial and gender transformation of the bench. But because senior and experienced black lawyers are not making themselves available for selection to the bench, less senior and more inexperienced lawyers now sometimes find themselves on the bench adjudicating on matters they do not know that much about.

This complaint must be understood against the background of subliminal racism that must be acknowledged to be widespread in our society but nevertheless difficult to pinpoint: without even knowing it, some people assume that most black people are intellectually or otherwise inferior and thus watch them for signs of that assumed inferiority.

When black judges without all the traditional experience start work, they must obviously feel under tremendous pressure because of such attitudes. In such an environment every mistake is amplified and given a racial taint, confirming the innitial prejudice of the traditionalist who remains unaware that the judgment he or she made is influenced by racial prejudice.

On top of that, the legal profession is notoriously snobbish and hierarchical, which means that some senior lawyers and judges are privately highly critical of new black judges because they feel the new black judges have not earned their positions.

At the same time, judges have a difficult job to do and must do it well. If, after being given support and guidance, some new judges fail to do their work properly, it is the duty of others to point this out.

I suspect that some – but not all – of the criticism levelled against black judges are influenced by racial prejudice. At the same time some of the new judges appointed by the JSC over the past ten years have never really been in the top of their class at either university or at the bar.

Because the excellent black lawyers can make millions in private practice, often the only black lawyers who make themselves available for the bench are the kind of mediocre lawyers who cannot make a good living at the bar.

In this they are no different from the thousands of lawyers of all races that practice throughout South Africa and muddle along without really needing to show flair or brilliance. Such lawyers are the backbone of the profession but are not made for the bench. The only difference is that some of them now find themselves acting as judges without the working habits or knowledge that would make such a job easy to do.

This is not necessarily good for the smooth running of the justice system.

If the black judges meant to suggest that they should be above criticism or that genuine mediocrity should not be pointed out and criticised, they are doing a disservice to the legal system. If they meant to suggest that criticism should be sensitive and considered and should not be based on racial prejudice, they have my vote.

What is important is for us all to debate these issues in a way that does not revert to name-calling and does not rely on racially motivated assumptions.

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