Justice Not Always (colour) Blind

Chief Justice Mogoeng Mogoeng has caused a proper rumpus with his intemperate comments on racial transformation of the judiciary. It’s unclear why he’s so unhappy – everything he wants is happening anyway.

Following months of criticism by public commentators and leading jurists at the difficulty that white males have in being appointed to the Bench by the Judicial Services Commission, and with the Helen Suzman Foundation now challenging the legality of the JSC’s approach, Justice Mogoeng told the Advocates for Transformation AGM a fortnight back that “war has been declared against transformation”.

He wondered if “the apartheid system really (has) been dismantled, or has it only changed marginally or 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?”

These are wily agents indeed: “a well-coordinated network…pretending to be working in isolation from each other”. The impartial judge named the “transformation agents” that must “lead the charge” to defeat apartheid’s imposters in this “war” as including the National Association of Democratic Lawyers, the Black Lawyers Association and “other truly progressive organisations”.

He bemoaned the number of white males that appear before his Constitutional Court and demanded that state entities brief black lawyers in future.

“Transformation” is, of course, the sort of term beloved of social engineers, being at the same time all-encompassing and impossible to pin down. In some cases it might mean the integration of previously segregated structures, or a process re-engineering, or a move to greater efficiency, or just straightforward demographic representivity.

This last is clearly what Mogoeng has in mind, although it rests on dodgy legality. The country’s supreme law, the constitution, is perfectly unclear. It allows, in sub-section 2 of its ninth chapter, for “fair” discrimination in “legislative and other measures designed to protect or advance” people previously unfairly discriminated against.

On this clause have justifications for racial gerrymandering been based right across the private and public spheres. No matter how intrusive, they are accepted almost without demur, sometimes for fear of being labelled racist for wanting non-racialism.

But is any of this stuff actually legal? After all, the constitution’s “founding provisions” are unambiguous: “South Africa is…founded on…non-racialism and non-sexism (and) supremacy of the constitution”, which presumably overrides whatever appears in any subsequent constitutional chapter.

Last year the High Court of Appeal upheld a Western Cape High Court ruling that by not appointing white males to the Bench, the JSC’s actions were “unconstitutional and invalid”.

All this happens while black Africans make up 16% of the Bar but saw their proportion on the Bench rise 69% (to 41% overall) between 2005 and 2012. No matter, there are even quicker ways to skin this cat.

Parliament now sits with a Legal Practices Bill that would abolish the independent law societies and bar councils and have them replaced with a 21-man body, a goodly majority of which are to be appointed by the Justice Minister or come from the very “transformation agents” that Mogoeng has called to the fight. For, as Minister Jeff Radebe puts it: “The transformation of the judiciary would be incomplete without the transformation of the legal profession (for) they are two sides of the same coin”.

– Paul Pereira (first published in The Citizen, 30 July 2013)