by Andries Nel, Deputy Minister of Justice and Constitutional Development
It seems truly bizarre but in 1994, less than a generation ago, 160 of the 165 judges on the bench were white men. This is not a typographical error. White male judges were, to use biblical language, fourscore times two in number. The heavy onus of making the judiciary appear to resemble South Africa lay on the shoulders of three black men and two white women. As for black women, well….
Today, as “Mandela’s children” prepare to vote for the first time, 100 black men and 49 black women, 71 white men and 21 white women serve our nation as judges. They do so knowing that they are part of a judiciary that is coming closer to reflecting the racial and gender composition of South Africa, as is required by our Constitution.
Similar progress has been made in addressing race and gender imbalances in Magistrates Courts. Of the 1661 magistrates, 974 are black and 687 are white, 647 are women and 1014 are men.
Whilst this represents significant progress, there is still much to be done – especially regarding the gender imbalances in the upper echelons of the judiciary, the Constitutional Court, the Supreme Court of Appeal and the ranks of the Judges President.
Regrettably, some insist on propagating the untruth that it is constitutionally suspect to pursue the objective of a representative judiciary or, alternatively, that although legitimate, this objective is being advanced in a manner that is unconstitutional.
If some are to be believed, the Judicial Service Commission has simply transposed the “Non-Europeans Only” signs from the railway benches of yesteryear to the judicial benches of today.
A resigned combatant from what is often portrayed as the gladiatorial game of judicial selection punts the notion that, in the eyes of the JSC, white men have become as politically ineligible to judge as they have always been genetically incapable of jumping.
However, what tales do those inconveniently stubborn things known as facts tell?
Of the 71 white men currently on the bench, 61 were appointed after 1994 – and of them, 22 were appointed since 2009.
The “white men can’t judge” mythology being peddled is in fact anti-Constitution: It seeks to stymie the transformation required by the Constitution while attacking the integrity of the JSC and that of judges, black and white, appointed by it under the Constitution.
The Constitution is the supreme law of our land. It is also a supremely transformational constitution. It requires of us to follow a transformative course action in respect of access to justice and the transformation of the judiciary and legal system.
Let us be clear. Transformation, the big T-word, necessarily includes – but is not limited to – attaining demographic representivity.
Transformation in the South African context basically means making our society, look, work, think and be like the Constitution says it should. Anyone who thinks that it does, or is close to doing so, or will do so in a decade, simply doesn’t “get it.”
Firstly, the Constitution enjoins us to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights and to lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.
Secondly, it guarantees everyone the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
Thirdly, it provides that the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.
Fourthly, it says that all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalized with a view to establishing a judicial system suited to the requirements of the new constitution.
Government is committed to strengthening of the independence, the dignity, accessibility and effectiveness of the courts as part of this transformation process.
The Seventeenth Constitutional Amendment Act, the Superior Courts Bill, and the South African Judicial Education Institute Act, provide a strong legislative framework to realize this objective. Measures such as the establishment of the Office of the Chief Justice as a department advance the objective of greater administrative independence of the judiciary.
Access to justice is being promoted by, amongst others, the building of new courts the conversion of existing branch courts to full-service courts, the establishment of Small Claims Courts, the re-demarcation of magisterial districts, the Review of the Civil Justice System and the work of Legal Aid SA.
However, the untransformed state of the legal profession remains a stumbling block to the further transformation of the judiciary as well as to greater access to justice.
The legal profession is a key provider of services that promote access to justice and it also constitutes a pool from which the judiciary is appointed.
Of the 2384 advocates (as at April 2012) who fell under the umbrella of the General Council of the Bar, 1367 were white men, 366 white women, 295 African men, 89 African women, 47 coloured men, 37 coloured women, 114 Indian men and 69 Indian women.
The picture becomes even more skewed when one examines the profile of the 473 senior advocates (or “silks” as they are called – because of their right to wear silk robes): 382 white men, 20 white women, 29 African men, 4 African women, 9 coloured men, 1 coloured woman, 24 Indian men and 4 Indian women.
Traditionally, it is from the ranks of these “silks” that judges are appointed.
The attorneys’ profession is marginally more representative. As at June 2011 there were 20,077 practicing attorneys of whom 36% were black and 64% were white. Women constituted 34% and men 66%.
Interestingly, the profile of law students is much more reflective of South African society. In 2011 of all first year law students, 78% were black, 22% white, 54% were women and 46% men. In the same year, of the 3751 LLB graduates, 68% were black, 32% white, 59 % women and 41% men.
The question is to what extent these more reflective demographics will be carried through into the profession and what stumbling blocks exist in this regard.
One important intervention is the restructuring of state legal services announced by the Minister of Justice and Constitutional Development.
Another is the Legal Practice Bill currently before Parliament. The Bill proposes an institutional and statutory framework within which these challenges can be addressed in a systematic and inclusive manner.
The proposed South African Legal Practice Council will bring together advocates, attorneys and representatives of broader society to find solutions to the challenges of: entry to the legal profession, availability of quality legal training and education, quality workplace learnership opportunities, provision of pro bono services and community-based paralegal services, as well as the regulation of legal fees in order to promote access to affordable legal services for all, especially the poor.
The Council will be a mechanism through which the Legal Services Charter adopted in 2007 can be implemented.
The Bill does not prescribe solutions but mandates and facilitates their formulation. This will require the active participation of all sectors of the profession – and of broader society. Whether the solutions that emanate from the process take us forward will depend, amongst others, on the ability of those committed to the transformative vision of our Constitution to give leadership.
Andries Nel is the Deputy Minister of Justice and Constitutional Development.
This article is based on notes for an address to a meeting of the Black Lawyers Association (BLA) – Student Chapter held at the University of South Africa (Unisa) on 4 May 2013.