Lost in Transformation

December 1st, 2013
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This is an abridged version of a paper delivered by Johannesburg attorney Mohamed Husain at the Ahmed Kathrada Foundation 2013 annual conference in October 2013, titled Lost in transformation? Reviewing 20 years of transformation in South Africa, in a session on judicial transformation.

The word ‘transformation’ means different things to different people. It does not appear in the South African Constitution and yet is one of the most important reasons for, and the basic premise, of the Constitution. The interim Constitution refers to itself as providing ‘a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex’.

The late Chief Justice Pius Langa suggested that transformation entails ‘a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships’.

Unfortunately, transformation is often not understood to be the revolutionary and all-encompassing process referred to by Justice Langa. Worse still, it is equated merely to race and gender representivity. Representivity is an important element of, but does not equate to, transformation. Any societal institution that is committed to transformation has to demonstrate not only that it is broadly demographically representative (being a necessary measure to counter the destructive social, political and economic engineering of our past), but also that such representatives demonstrate a commitment by word and deed to the reconstruction of the state and society referred to by Justice Langa, so that the values enshrined in the Constitution become a reality for all.

Professor Pierre De Vos of the University of Cape Town poses a few acerbic and rhetorical questions to demonstrate what transformation is not. He asks what politicians or the emerging business elite mean when they refer to transformation. ‘Do they mean that we should continue as before but should just have less white people with their snouts in the trough and more black people benefiting from the spoils of a system that remains – in its essential structure at least – not much different from that which operated under apartheid?’ He continues: ‘What is transformation? Can one eat it and use it as a blanket at night to ward off the cold? Will it provide a roof over one’s head, clean drinking water and electricity and a job that will allow one to live with a semblance of dignity? Can one feed one’s children with transformation and send them to school on it? Can one get good medical care (I have not yet seen any pharmacy stocking transformation pills that will make us healthy) and protect oneself and one’s loved ones from crime with a transformation blanket?’ (P de Vos ‘What do we talk about when we talk about “transformation”?’ http://constitutionallyspeaking.co.za, accessed 13-11-2013).

He states that transformation has become a catchphrase to justify greed and self-interest and prevent the fundamental changes needed to actually address the monumental poverty and the criminal gap in wealth and personal circumstances between the rich (more and more a non-racial rich) and the poor, which remains largely black. He says that the word ‘transformation’ ‘does not cut the mustard, [i]t has become a hollow and empty word, devoid of any real meaning’.

The above discussion is critical to the way we view the transformation of the judiciary.

Because I start from the premise that racial and gender representivity is but one aspect of transformation and that it is not axiomatic that such representivity leads to the fundamental reconstruction of our society that is required (which seems to be if not an overt then at least a subliminal message conveyed by many contributors to the debate), I am not going to spend much time on the numbers of black and female judicial officers. Suffice to say that much progress has been made in ensuring that the Bench is racially representative, but more can be done to make it more gender representative.

Generally speaking, the South African judiciary has acquitted itself quite favourably since the advent of democracy. The jurisprudence of the Constitutional Court is highly regarded across the world. It has handed down many seminal judgments such as in the cases of S v Makwanyane and Another 1995 (3) SA 391 (CC), Minister of Health and Others v Treatment Action Campaign and Others (No 1) 2002 (5) SA 703 (CC), Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (CC) and cases dealing with discrimination based on, among other things, sexual orientation. Generally speaking, the Bench has shown itself to be independent. However, the current concerns around the structure and functioning of the Judicial Service Commission (JSC) need to be addressed carefully. Unless these concerns are debated dispassionately, openly and maturely a dark cloud will hang over the propriety of the judicial appointment process and its contribution to transformation. Ultimately, this would lead to a lack of respect for the Bench.

The creation of the JSC was revolutionary and a decisive break from the past. In the past, judges were by and large appointed on the basis of their political affiliation by the executive through a secret process. The only transparent aspect of the process was that you knew that you stood a good chance of being appointed if you supported the status quo and could be counted on to give judicial legitimacy to repressive legislation. Of course, not all judges fell into this description, but I speak generally.

Many years before the United Kingdom and other developed countries within the Commonwealth introduced judicial appointment bodies, the JSC was created. Unlike most countries it issued public invitations for vacancies, interviewed applicants openly and sometimes under the glare of television cameras and it was comprised of a cross-section of persons.

Currently, the biggest debate regarding the functioning of the JSC relates to its interpretation of ss 174(1) and 174(2) of the Constitution. Since that debate turns on the functioning of the JSC (and is a litmus test for what its members regard transformation to be), I deal with another problematic question, which has not received as much exposure, namely the composition of the JSC.

Section 178 of the Constitution deals with the composition of the JSC. It is comprised of 23 members, namely –

  • the Chief Justice;
  • the Minister of Justice;
  • the President of the Supreme Court of Appeal;
  • one Judge President;
  • two practising attorneys;
  • two practising advocates;
  • one professor of law;
  • four presidential nominees; and
  • ten members of parliament.

Therefore 15 of the 23 members are representative of the executive and the legislature. I believe this to be undesirable. It can lead to the perception, at the very least, that the appointment process of judges is not an independent one and that the process is unduly influenced by the executive and legislature. I raise this as a matter of principle and not on the assumption that the Minister of Justice, the presidential nominees and the members of parliament will vote as a block.

I can understand representation from members of parliament on the JSC. However, I believe that this should be kept to a minimum and almost certainly the president’s power to nominate should be abolished. The United Kingdom’s Judicial Appointments Commission is made up of 15 members – two from the legal profession, five judges, one member of the tribunal (who is a judge), one magistrate and six lay people including the chairman. There are no representatives of the executive or legislature. The Nigerian National Judicial Council is comprised of 25 members the majority of whom are serving and retired judges, five of whom represent the profession and two are lay persons. In India, the process is not transparent in that the chief justice nominates judges for appointment to the prime minister, after private consultations with other judges. However, there is no direct involvement of the legislature or the executive in the nominations process. The Judicial Commission of New South Wales consists of six official members (who are all judges) and four appointed members. Although the last four members are appointed by the governor of New South Wales, one is a legal practitioner and the other three are lay persons. The majority therefore is constituted by members of the Bench. I believe there are many other examples around the world that reflect the trend of minimal, if any, involvement in the judicial appointments process by appointees of the legislature and executive.

The interesting question that arises, insofar as the members of parliament are concerned, is whether they are to act in a representative capacity in discharging their functions on the JSC. In other words, are they to approach their functions in accordance with party political lines? The answer to this must be in the negative. Each member of the JSC is to consider only the criteria referred to in s 174 of the Constitution and is not to be motivated by any political party preferences or agendas.

The vexed question of the proper interpretation of s 174(1) and (2) must be dealt with. Section 174(1) in its relevant part provides: ‘Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer.’ Section 174(2) provides: ‘The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’ At the heart of the debate is the relationship between the requirements of being ‘appropriately qualified’ and being a ‘fit and proper person’ on the one hand and the need for the judiciary to broadly reflect the country’s population in terms of race and gender on the other.

It has been argued that the actual criteria for appointment as a judge are the two referred to in s 174(1), namely that a person must be ‘appropriately qualified’ and must be ‘fit and proper’, while the requirement of s 174(2), namely race and gender representivity, is a consideration or a rider and not a criterion. It is instructive to note that the section itself uses the word ‘consideration’. It is therefore not a dispositive criterion. In support of this argument, it is contended that s 174(2) is subordinate to s 174(1). There is much to be said for this argument and it appears to be supported by a textual interpretation of the relevant subsections. It is also logical.

The contrary argument is that the requirement of representivity in s 174(2) is a constitutional imperative and that it is as much a criterion as the two set out in s 174(1). However, this argument appears not to be sustainable. The matter is currently before court and the sooner we get clarity on the proper interpretation, the better.

The requirements of appropriate qualification and fitness and propriety are not defined in the Constitution. ‘Appropriately qualified’ can have a narrow meaning and can refer only to academic and professional qualifications. I think it is accepted that this narrow definition is inadequate and that legal knowledge and experience are part and parcel of the definition. This does not necessarily mean that every candidate must have the skills and the experience in every branch of the law. Legislation relating to specialist courts such as the Labour Court and the Land Claims Court requires their judges to have had experience and expertise in those fields. Academics who have spent a lifetime teaching, for example, public law, might well be more suited to the Constitutional Court than to the High Court where experience in general litigation and criminal law might be more appropriate. Of course, candidates must show that they will be able to demonstrate the qualities that judges are required to have – namely, a good grasp of the law and its application, forensic ability, court procedure and the ability to articulate both orally and in writing.

One of the major difficulties in considering the criterion of appropriate qualification, especially in the broad sense in which it must be defined, is that due to our past, people of colour were forced to study at so-called ‘bush colleges’ where the standard was certainly not the same as those in the more established and better resourced ‘white’ universities, such as the University of the Witwatersrand and the University of Cape Town. Similarly, most practitioners of colour were not exposed to many areas of practice either as advocates or attorneys. A nuanced approach has to be followed in this regard, with consideration given to the potential that such candidates would have as opposed to actual experience, as one of the measures to level the playing fields. However, this does not mean that a person of colour who is clearly not appropriately qualified ought to be appointed on the basis that it satisfies the requirement of racial and gender representivity referred to in s 174(2).

The criterion of fitness and propriety refers to the personal attributes of honesty, integrity, independence and an unwavering commitment to the values of the Constitution. These attributes cover the definition of transformation by Justice Langa that I referred to above and are informed by s 165(2) of the Constitution, which states that the courts are independent and subject only to the Constitution and the law, which they must apply impartially without fear, favour or prejudice. A great deal more can be said about these elements.

The provision of s 174(2) that the judiciary ought to reflect broadly the racial and gender composition of South Africa needs to be unpacked.

For the judiciary to be legitimate, it is important that black men and women are appointed in good number. However, it needs to be understood that these judges are not representatives of any particular constituency. Sir Sydney Kentridge QC put it this way when talking about the UK’s Supreme Court:

‘The concept of representativeness may be quickly discarded. A more fruitful concept is diversity. Diversity in a court of final appeal is in my view a good in itself. This does not mean that a woman judge on the panel or a judge from a different ethnic background will necessarily decide a case differently from a white male judge. But their presence could enrich the court’ (S Kentridge ‘The Highest Court: Selecting the Judges’ (2003) 62(1) Cambridge Law Journal 55 at 60).

He also quoted Lady Justice Hale who said that ‘a generally more diverse Bench, with a wider range of backgrounds, experience and perspectives on life, may well be expected to bring about some collective change in empathy and understanding for the diverse background, experience and perspectives of those whose cases come before them’ (at 60).

Speaking of his experience as a judge of the South African Constitutional Court, Sir Kentridge said:

‘This diversity [of the court] illuminated our conferences especially when competing interests, individual, governmental and social, had to be weighed. I have no doubt that this diversity gave the court as a whole a maturity of judgment it would not otherwise have had. Yet no-one, black, white, male or female was representing any constituency’ (at 61).

Professor Kate Malleson states that: ‘The need for judges to be independent and impartial means that we should not talk about a representative judiciary in the same way we might the legislature and the executive. Judges are not there to represent the interests of any particular group but to ensure that the law is applied fairly and equally to all’ (K Malleson ‘The New Judiciary: Rethinking the Merit Principle in Judicial Selection’ vol 33 no 1 (2006) Journal of  Law and Society 126).

What demographic representivity cannot mean is that one should resort to the racial classifications used under apartheid, namely black, coloured, Indian and white. That would lead to the absurdity that each such group should be represented proportionately.

I agree with the University of Cape Town’s Democratic Governance and Rights Unit, when it states that:

‘While it is difficult to resist the conclusion that the section has been unhelpfully drafted, it is similarly difficult to see both as a matter of interpretation and given our colonial and apartheid history why we should not strive for a Bench that is composed primarily of judges of African descent. That being said, we must strongly resist any interpretation that frustrates non-racialism and perpetuates apartheid’s offensive racial practices’ (S Cowen ‘Judicial Selection in South Africa’ (2010) www.dgru.uct.ac.za, accessed 14-11-2013).

The transformation of the judiciary depends on each candidate applying for appointment being carefully considered against the wider definitions of ‘appropriately qualified’ and ‘fit and proper’ suggested above. If a black candidate does not meet these criteria then whether he or she contributes towards the racial and gender composition of the Bench is irrelevant. The converse holds true: If a white candidate meets the criteria in all respects that candidate should not be excluded on account solely of his or her colour and gender. A narrow approach to the criteria in s 174(1) and a narrow and formalistic approach to the requirement of race and gender representivity in s 174(2) could have the effect of excluding white progressives and appointing black conservatives on the Bench.

As regards the question whether representivity in the judiciary translates to more socially-just practices, the answer has to be ‘not likely’, unless those appointed on such a ticket meet the requirements of the criteria as defined above and demonstrate a commitment to true transformation.

I submit that the JSC can do much more to ensure that candidates are questioned more intensely on broader considerations of transformation. With respect, there have been a few unfortunate appointments of both white and black candidates, which suggest that the process has not been sufficiently rigorous and all-embracing. The proper functioning and structuring of the JSC would enable the Bench to meet the imperatives of independence, of being subject only to the Constitution and the law and of applying the law impartially and without fear, favour or prejudice, as is required by s 165(2) of the Constitution.

This article was first published in De Rebus in 2013 (Dec) DR 3.