Has the ongoing battle for judicial representation and independence been railroaded by conservative agendas resistant to change? Chief Justice Mogoeng Mogoeng thinks so
For the overwhelming majority of black South Africans, the wounds and excruciating pain caused by centuries of being subjected to psychological trauma and merciless “beatings” are still fresh and sharp.
The poverty, lack of real economic opportunities and the apparent resistance to change by a good number of fellow South Africans, who benefited tremendously from the excellent educational and economic opportunities reserved exclusively for them by the apartheid system, can only serve as a constant and rude reminder to the victims of poverty and limited opportunities for career and professional advancement.
The questions they are bound to ask themselves are: Has the apartheid system really been dismantled? Or has it only changed marginally?
Has a grouping of its key operators metamorphosed into a movement that masquerades as agents for the enforcement of constitutional compliance when they are, in fact, a change-resistance force?
It is of great importance that we do everything within our power as South Africans of all races to avert the dangers that a disguised protection of white male privilege, at the expense of opening up opportunities for women and black men, is loaded with.
In cases involving areas of law in which white male senior counsel are believed to be in possession of special skills, which women and black lawyers are, rightly or wrongly, believed not to have, black attorneys and junior advocates should in the case of state-funded institutions be prioritised for support.
And in the case of government departments and legislatures, black junior advocates and female advocates should be affirmed.
Big business should help dispel the apartheid myth that black and female practitioners only have the brains for straightforward criminal cases and divorce matters.
This goal will be achieved by entrusting them with complex matters, at least as junior counsel.
Instructions and brief allocation with particular regard to race and gender must be seriously reconsidered.
You can find out from the record of appearances in the Constitutional Court. More than 90% of appearances before that court are white and male.
Based on the instructions-giving and briefing patterns before the court, it appears that South Africans are yet to appreciate their duty to help transform the profession and by extension the judiciary.
No wonder we only hear voices critical of transformation when matters affecting the Judicial Service Commission (JSC) and its recommendations are discussed.
None of the personalities and nongovernmental organisations who speak regularly about the perceived areas of concern about the JSC processes and even litigate about them have ever spoken with any, let alone equal, passion against the conservative, apartheid-style instruction-giving and briefing patterns. They seem to be more concerned about white men who are not appointed and do not seem to be concerned about the reasons for not recommending them for appointment.
Members of the organised profession ought to lead the charge on the transformation of the profession and the judiciary. Sadly, they are conspicuous by their silence.
When black men and women were appointed to higher courts for the first time, those opposed to change voiced a concern about the so-called lowering
The same argument has changed tack a bit lately.
It was initially said that there was no commitment by the JSC to gender representation.
Suddenly, it changed to the alleged bias against white men. Some of the advocates of gender representation even nominated and openly fought for the appointment of a white man and inexplicably jettisoned their campaign for gender representation.
When “unwanted” white males were appointed, they were labelled executive-friendly.
These developments seem to suggest that war has been declared against transformation. People are clutching at straws to discredit the JSC.
The same people or organisations who are accusing the JSC of being controlled by politicians are beginning to look like they want to control the JSC themselves.
I have come to challenge, genuinely so, progressive bodies to resist all efforts geared at the protection of white male dominance in the professions and the Bench. And also the equation of the appointment of black and women practitioners to the institutionalisation of mediocrity.
The apparent discomfort with the progress we are making in transforming the judiciary, as if we are about to encroach into the no-go area of privileged interests, and the concomitant boldly declared struggle for “white male” appointment, even if it would result in the perpetuation of their historic over-representation, must be dealt with decisively.
We must no longer allow this voice of resistance to be the only voice in the public domain. It disseminates toxic inaccuracies which have the potential to cause some reputational damage to our judiciary nationally and abroad, as I learnt in London last week.
And for the record, many white males have been recommended for appointment by the JSC over the years. It is for them and those who know them better to say whether they are “executive toys” and incompetent, as alleged.
The point to be emphasised, though, is that a deliberate attempt is being made to delegitimise the JSC and through some scare tactics intimidate or mock the JSC into recommending, without proper reflection, certain white men and at times certain women, for reasons best known to those who are campaigning for them.
This illegitimate neo-political campaign to have certain people appointed must be strongly opposed. We must all use available avenues to expose this retrogressive campaign and the danger it poses to nation-building and reconciliation.
But be warned, that engagement is not for the faint-hearted. The defence of genuine transformation, as was the case during apartheid, inevitably attracts mockery, being labelled conservative and a tool of the executive.
Be ready for untold attacks from all sorts of people projecting themselves as fiercely independent, impartial, progressive analysts or highly respected, professional commentators. Be ready to be trashed by a well-coordinated network of individuals and entities often pretending to be working in isolation from each other.
And don’t be selfish. Use your privileged position of influence for the benefit of the nation and posterity, but not in the furtherance of questionable sectarian interests or agendas.
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