Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.
By Kgomotso Moroka
I can say this with authority as I have been in the practice of law for almost 30 years now and over that period I have served in almost all its layers, as interpreter, prosecutor, practising attorney, magistrate, member of the bar, acting judge and, until recently, a member of the Judicial Service Commission that recommends the appointment of judges.
Traditionally, judges in South Africa have, for over 100 years, been appointed from the ranks of senior members of the bar. Very few will quarrel with the wisdom of that.
Because the bar comprises specialist litigators, and judges preside over litigation matters, it makes sense that judges should be appointed largely from the ranks of specialist litigators.
But the bar has not been congenial towards female and black lawyers. The numbers demonstrate this. This is the result of at least two things. One is that black lawyers were, until fairly recently, not permitted to join the bar (Pretoria) and were refused to keep bar chambers (Johannesburg). These are the two largest bars in the country.
The other is that female and black members of the bar are generally perceived not to be good enough for substantial and complex work. This is a perception, but perception in this profession is everything. As a result, most young female and black lawyers do not join the bar for fear that their ability as lawyers will be measured on perception.
So, with a view to establishing a more representative judiciary, it has become necessary to look beyond the bar for judicial candidates. But the vast majority of candidates still come from the bar.
It is for this reason that the judicial transformation debate cannot be divorced from a debate on the transformation of the bar. The perception that female and black members of the bar are not good enough is without any merit. It is also unfair to the individuals concerned to be judged by reference to factors over which they have no control: their gender and race.
Since it is a perception that starves female and black advocates of quality work, it must be addressed. That done, quality work will flow to them and with that the floodgates will open for new female and black legal talent. The result will be a wider pool of quality judicial candidates and ultimately the numbers game will be a thing of the past.
The most effective way of addressing this perception, and in the process building a larger quality pool of judicial candidates, is to give quality work to female and black members of the bar. And I am not talking about a pilot project of a trickle of work for six months to a year.
I am talking about an unconditional long-term project, because quality judges cannot be trained and developed in a couple of years.
Section 174 (2) of the constitution is clear as regards the need for the representativeness of the judiciary. Some of these same female and black members of the bar who are denied quality briefs on perception will serve as judges in future. How are they expected competently to determine matters on complex issues in which they were never given the opportunity to practise? Clearly, the reluctance to engage female and black members of the bar in quality work is not in the long-term interests of the judiciary, the bar, the legal profession and the nation.
The number of white male senior counsel has grown by 55 over the past seven years (from 274 in 2002 to 329 in 2009), while the number of black female senior counsel (Indian, coloured and African) has increased only by one over the same period (from three in 2002 to four in 2009). This is perhaps a clear indication of the perception that black women are not good enough. But if that is true, then only quality work will make them good enough, surely.
Only 6% of all white female advocates are senior counsel. One in every four white male advocates is a senior counsel! The message is that one in four white males advocates across the country is good enough to be senior counsel and, by implication, a judge. Just 2.6% of all black female advocates are senior counsel and 10.6% of all black advocates (Indian, coloured and African) are senior counsel. Message: nine out of 10 advocates who are not white are not good enough to be senior counsel. By implication, they are not good enough to be judges.
This is not true. But even if it were, clearly that is not a healthy state for the future of the judiciary and its legitimacy. Experience in quality briefs prepares one for judicial office. Thus, the largest consumers of legal services have a national duty to help prepare women and black advocates for a successful tenure on the bench.
Members of Advocates for Transformation are also members of the bar. We would like to see a unified bar that does not infuse debate with reference to gender and race. But until the reason for such references goes away, we shall forever be a profession of two camps: those perceived to be brilliant on the one hand, and those perceived not to be good enough on the other. The judiciary will remain the poorer for it.