Black Judge, White Judge
Transformation could be at last coming to South Africa’s judiciary, long dogged by allegations of racism and being one of the last vestiges of apartheid.
The issue has however stoked immense debate in a country so polarised by race issues.
This past week, Izak Smuts resigned from the Judicial Service Commission claiming he was disturbed by apparent segregation against white male judges.
He decried that some white professionals who were “examples of intellectual forensic excellence, steeped in the values of the constitution” had been rejected for appointment by the Commission for judicial appointment or promotion.
Smuts claimed: “That approach has resulted in a massive loss to our courts of the opportunity to utilise optimally the finest available intellectual prowess.”
In an internal discussion paper, which Smuts authored and leaked to the media before the Judicial Service Commission deliberated on it, he contended that: “If the majority view is that, for the foreseeable future, white male candidates are only to be considered for appointment in exceptional circumstances (an approach I consider to be unlawful and unconstitutional), the JSC should at the very least come clean and say so, so that white male candidates are not put through the charade of an interview before being rejected.”
But Chief Justice Mogoeng Mogoeng has rebutted Smuts’ claims and told a Press conference that in the appointment of judicial officers, Section 174(2) of the Constitution of South Africa called on the authorities to “reflect broadly the racial and gender composition of South Africa”.
Mogoeng emphasised “that white males are in fact regularly recommended by the Judicial Service Commission for appointment” and that the commission “is not pursuing and never has pursued a so-called covert political agenda”.
As if to demonstrate that point, the Judicial Service Commission nominated South Gauteng High Court judges Halima Salduker and Nigel Willis to fill two vacancies at the Supreme Court of Appeal at the endorsement of President Jacob Zuma.
Smuts is reported to have sulked during the interviewing of candidates and did not ask questions to any of them.
Debate on the so-called transformation of the South African judicial service has been heavily polarised.
The transformation of the service has been called by some watchers as “reverse racism”, a charge Chief Justice Magoeng has denied.
Some analysts have labeled the changes as “affirmative transformation”.
And that too this has its problems.
“South Africans should ask themselves: What is the real purpose of affirmative transformation? Does it aim to merely substitute white faces with black ones or does it seek to transform public and private institutions to reflect South Africa’s racial demographics?” queried Brad Cibane in a South African weekly paper last week.
He noted the imperative of Section 174(2) of the Constitution provides that for broad racial and gender composition.
“One … problem is balancing ‘transformative appointments’ with the merit and excellence required for an efficient judiciary,” he said.
He went on to argue that “inappropriate transformation is unfair to black candidates and women, more so than it is to white candidates who are overlooked” adding that they might feel, or being made to feel inferior being there by dint of affirmative action rather than merit.
But he adds a caveat: “Transformation must not bring the judiciary into disrepute. Transformation must not bring into question the independence of the judiciary or the ability of judges to ‘apply There could be a way to rectify the situation.
Fabian Scher situated the basic problem with the broader nature of South African society.
“The problem lies with system,” he said. “If all races in the country would have the same education standard, the JSC would not need to advantage certain races.
“So the only way to get the Judicial Service Commission out of the conflict would be to raise the education level to the same level for all population groups – not an easy venture. As long as certain groups are disadvantaged in terms of education, the JSC will find itself in a difficult situation.
“If not education, it may be instructive for the JSC to identify and groom promising black legal professionals, allowing them to learn from outgoing and more experienced white jurists. For now, the body, consistent with its constitutional mandate, has decided that ethnic origin may be more important than meritorious achievement.”
The latter point could be disputed by some quarters, as debate on the issue goes on.