Go beyond lawyers for new judges

I recently wrote an article for the Business Day about how the characteristics of potential judges have come under the microscope. The Helen Suzman Foundation has taken the Judicial Service Commission (JSC) to court because of the criteria it uses to select judges for the 14 High Courts, a handful of specialist courts, the Supreme Court of Appeal and Constitutional Court (higher courts).

The hallmark of a Constitutional democracy is the independence and competency of the judiciary. So it is important that all citizens take an interest in the unelected judges that are appointed to the higher courts and the terms on which they are appointed because of the power they have in developing the law and advancing the Constitution and its values.

Section 174 of the Constitution requires the JSC to select judicial candidates that are “appropriately qualified” and “fit and proper”, while bearing in mind the constitutional obligation for the judiciary to broadly reflect the racial and gender composition of South Africa. In tackling this issue, the head of South Africa’s judiciary—Chief Justice Mogoeng Mogoeng of the Constitutional Court—recently said, “[m]erit does count but it is not all about merit. Transformation is just as important.”

And here’s the bind: this statement suggests that merit and transformation are mutually exclusive—that in promoting certain candidates based on race and gender we may have to sacrifice “quality” in the hope of speeding up the process of addressing past injustices.

The Foundation disagrees. It says that in a constitutional democracy an independent judiciary must be staffed by judges of the highest intellectual ability and moral character, who not only understand but also live the spirit of the Constitution, and for this reason:

[R]ace and gender constitute two of many considerations that must be taken into account by the JSC when it exercises its discretion…the need for racial and gender equality must be considered alongside other factors, such as a candidates technical competence, temperament and communication skills.

The Foundation therefore wants an order declaring the JSC’s decision to appoint some judges, and not others—Jeremy Gauntlett, Stephen Koen and Nonkosi Saba—unlawful and/or irrational and invalid because the JSC misconstrued its powers by elevating factors of race and gender in a way that forestalls consideration of other relevant factors. Alternatively, it wants the process followed by the JSC declared invalid.

In response to the Foundation’s papers, I made two observations about these other “relevant factors” in the hope that we might deepen the debate about transformation and who judges should be. According to the Foundation, these factors can be summarised as: knowledge of the law; an ability to assimilate information; analytical ability; intellectual ability; good temperament; compassion; and administrative ability. Importantly, it includes as one of its factors, “a good working knowledge of social, political, and economic reality is essential.”

First, I argued that although race and gender (diversity rationale) will continue to be important, the diversity rationale must be understood in terms of class - if we are serious about addressing inequality and “representivity” of society. Second, the mainstream legal debate about “relevant factors” continues to perpetuate legal myth: we think men - compassionate, with a good temperament - who have spent time in a court fussing over procedure and legal technicalities have a better grasp of justice.

Both of these points are important. As Atticus Finch says to his young daughter in To Kill a Mockingbird, a famed story about racial injustice in the American deep South after the 1929 Great Depression, “[y]ou never really understand a person until you consider things from his point of view… Until you climb inside of his skin and walk around in it.” That is, until you imagine what it would be like to be them: perhaps poor, intersex, in-between jobs, unemployed, an ex-convict, unable to pay rent, or with no place to stay. And by “them” I mean, the majority of people in our country.

But more than just walking around in other people’s shoes, we need smart, highly capable, analytical and respected people from a wide range of communities on the bench, who know what it’s like to walk inside the skins of different kinds of South Africans; not just on the basis of race, but on life experience. In, “social, political, and economic reality”. And that’s a hard feat - racial, financial, geographic, education and class inequality makes it impossible for the bench to be truly representative. Yet despite this, and other obstacles, we must develop a programmatic response to the challenges that face the legal profession.

A good start would be to confront the brutal facts and realise just how shallow the pool for potential candidates actually is.

A recent survey of Large Corporate Law Firms ¹ examined the gender, race and disability distribution across various levels of employment from candidate attorney level to managing partner/CEO level. Some key findings were that: females make up a total of 53.4% of the employees at the 12 participating firms, but overall there are more than double the number of white females as compared to black females; there tend to be more white females in more senior positions; and, senior positions seem to be dominated by white males: 45% of all salary partners, 53% of all equity partners, 72% of all managing partners and 80% of the CEOs at participating firms are white males.

In the advocates profession, there are just 4 senior black female advocates in South Africa. Junior black female advocates make up 4% of the profession compared to the 57% of white males (89 and 1367 out of a total of 2,384 advocates respectively) with 69 Indian and just 37 coloured female advocates in the entire country.²

And this says nothing about class.

Accepting that the pool is thin, and that there are serious barriers to entry, we must then develop plans that have broad buy-in from all stakeholders to widen the pool of judicial candidates on an urgent basis.

I have suggested one possible strategy, which is a two-pronged approach, and doesn’t simply look at the JSC in isolation, but rather the legal profession more broadly. First, it is necessary to critically assess the myth behind what it is that judges do and who they should be. We must think creatively about fit and proper candidates who, in a modern, complicated, ambiguous and complex world of economics, politics and social construct, have knowledge of the law; or an ability to assimilate information; or analytical ability; strong intellectual ability; good temperament; compassion; and administrative ability (the relevant factors).

For example, many Treatment Action Campaign (TAC) members certainly know the law as activists took on government policy, scientists, a lack of legislation and intellectual property laws and large multi-national corporations. Would you say this knowledge and experience of the law is inferior to a corporate attorney who specialises in one narrow field, for example, banking and finance? The claim that advocates, legal academics and corporate attorneys are exclusively qualified, or even worse, best suited to act as judges remains substantially unproven - I am yet to see any quantitative or qualitative assessment that shows otherwise. As Noam Chomsky reminds us, it is the responsibility of public intellectuals and critical thinkers to seek the truth and justice “hidden behind the veil of distortion and misrepresentation, ideology and class interest, through which the events of current history are presented to us”. We must therefore interrogate who the judiciary should be and develop a more critical understanding of judicial qualities and understanding of how we experience the law in South Africa.

Second, we must develop a plan. One possible solution is to consider widening the pool of candidates by approaching “non-lawyers” who have experience “with the law” and prepare them by sending them off to a highly regarded judicial school where their skills are refined, and then introduced to the bench through a programme that is incremental. This process has already begun. Moreover, we may also want to think about igniting the debate about career jurists. There is an enormous space for reconstruction here and we must approach the problem critically and creatively. The real transformation lies not in black and white, but in how we think of and experience the law - particularly with how we understand “fit and proper” and appropriately qualified”.

Footnotes