An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
A while ago I was lambasted by some readers for suggesting that some senior black leaders – including Jackie Selebi, President Jacob Zuma, Advocates for Transformation and the Black Lawyers Association – were guilty of hypocrisy because they seem to support the appointment of white lawyers in high profile cases. Why is there no outcry when Selebi appoints a white lawyer to defend him when there are talented black lawyers who could have dealt with his case just as well? (Granted, I was a bit more sarcastic than that.)
Well, I see I have gotten support from Sunday Times columnist, Pinky Khoabane. Yesterday she wrote:
The ever-growing trend among black political leaders to appoint white male lawyers to represent them in legal cases begs the question: 15 years into our democracy, does this country still not have black men and women who are capable of handling high-profile cases….
Selebi’s choice may have been motivated by Cilliers’s victory in the Basson case, but for goodness sake, was there really no one else, seeing that Selebi spent years in exile fighting for a nonracial society where hitherto disadvantaged people would be given more access to better opportunities professionally and otherwise? Do I smell double standards?
Gratifying as it is to note that I am not alone in noting this phenomenon, it seems to me the issue touches on something more profound than the messy shenanigans around the Jackie Selebi case.
What do we mean when we talk about “transformation”? How do we see our own role in that “transformation”? Are we committed to change the way we think and change the way our (often racist inspired) assumptions still guide our actions? Are we prepared to embrace values that truly reflect respect for the human dignity of all and show concern for the marginalised and oppressed? When we talk about transformation do we merely mean that we want to see white patriarchal men replaced by black patriarchal men while we are perfectly happy to keep the deeply unfair and inhumane system on which apartheid was built essentially in tact?
Of course, some people fundamentally oppose transformation because it threatens their material well-being and their feelings of race superiority. Pointing to the excesses of the new elite (real or perceived), they rail against any fundamental change on the basis that “black people will stuff everything up”.
Others support transformation only because they think it will bring material and other benefits (status and power) for themselves. They often defend the excesses of the new elite committed in the name of transformation by reminding us of the horrors of apartheid and then implicitly argue that they are doing no worse than those who ran the apartheid state. “They” did it during apartheid, and now it is “our” turn to do it, so why are you complaining, they often say.
Debate on the transformation of the legal system and the judiciary often falls into this spiral of accusation and counter accusation. “You give me John Hlophe, but I will raise you with a mention of Wouter Basson and a Judge Braam Lategan.” In this context a debate about legal and judicial transformation becomes nothing more than a debate about how many black men should be appointed to the various High Courts and why those black men already appointed should be defended or snidely vilified at all cost.
What a pity.
It seems to me what is needed to get us out of this mess is to take a step back and to move beyond the specific individuals and cases (like the tragic and scandalous Hlophe saga) and to ask all of us to think carefully about what we wish to achieve with the transformation of the legal system and the judiciary.
Personally I see at least three legitimate goals for the kind of transformation we should be striving for.
First, we want to rectify past injustice. In 1994 only 3 of South Africa’s judges were not white and male and more than 90% of the practicing advocates were white. This obviously did not reflect the inherent capabilities of members of the legal profession, but was rather the result of apartheid policies which directly and indirectly were perpetrated by the (white and male dominated and controlled) legal profession.
White legal professionals would do well to remind themselves that many of them were part of a system that explicitly or tacitly condoned racial and gender discrimination in the legal profession. They should also remember that they are all still benefitting from the consequences of this discrimination. To some degree the race and gender transformation of the legal profession must therefore be concerned with numbers. This is not an issue of “racial esthetics” but of justice.
Second, there is a need to make the legal profession and the judiciary more legitimate. The law was an instrument through which apartheid was enforced and gender discrimination was sanctioned. Moreover, almost all leadership positions in the profession were held by white men, and this largely delegitimated the law and the courts which had to enforce the law. If we want to build a legitimate legal system, we need to provide more people with better access to justice while also changing the face of the legal profession and making it more representative in terms of race and gender.
Those who resist transformation might well be reminded that it is in their own interest to embrace transformation because without a legitimate legal system their own livelihood would be threatened. If our courts are not legitimate and if ordinary people feel that the law has nothing to do with their own lives, it will be far easier for uncrupulous politicians one day to undermine the Rule of Law and to destroy the independence of the judiciary.
Third, transformation is also about a fundamental change in the values underpinning the legal system. Do we really want to replace white, sexist and homophobic patriarchs with black, sexist and homophobic patriarchs? Do we want to replace white judges who care only about money and their own privileges with black judges who do the same?
It is this third aspect of transformation that seems to be falling by the wayside. When a member of the JSC questions a candidate for judicial appointment about her sexual orientation, when members of the JSC fails to question candidates about their views on gender equality and patriarchy, about their attitudes towards forced removals, about the importance of supporting active social movements to fight for the rights of the poor, the JSC is failing in its duty to support deep and meaningful transformation and runs the risk of appointing judges who might be black, but in all other ways would be carbon copies of some of the reactionary white judges appointed during apartheid.
My view is that if we really want to show a commitment to the transformation of the legal system, we should demonstrate a commitment to all three the aspects touched on above. While enthusiastically embracing the drive to change briefing patterns so that more women and black advocates can thrive, and while also clamouring for the appointment of more black and women judges, we should not think that this alone will truly transform our legal system.BACK TO TOP