In South Africa, lack of white judicial appointments raises eyebrows

In South Africa, where judges and courts have come to hold a special importance, a recently leaked internal document has brought into the open a debate about the racial makeup of the judiciary.

Since the advent of democracy in 1994, the African National Congress (ANC), the mostly-black anti-apartheid liberation movement, has enjoyed consistent electoral success and has come to dominate most aspects of national politics and the instruments of government.

As a result, the courts and judiciary have been left as the only branch not directly controlled by the party, and have come to be seen as an important and relatively colorblind path for groups and individuals seeking redress.

Yet the courts are also accused of sloth or delay in the collective South African effort known as "transformation" – a term of art for the shedding of apartheid and its inequalities. 

The transformation of the judiciary has focused on the racial makeup of the bench, but critics now say the process has gone overboard – and that white, male prospective judges are not getting a fair shake.

'Uncomfortable perception'

Things came to a head on April 7, when an internal "discussion" document from a member of South Africa's Judicial Services Commission (JSC), the body that interviews and nominates judges, leaked in local media. 

“One way or the other, the JSC must deal with the uncomfortable perception that the graffiti on its wall reads 'white men can't judge,' "  wrote lawyer Izak Smuts in his report, which immediately set off a small media storm.  

Mr. Smuts said the commission must debate and then decide whether white males should cease to be considered for judicial appointments in the short-term – in the interests of changing the overall racial makeup of the judiciary.

“The JSC should at the very least come clean and say so, so that white male candidates are not put through the charade of an interview before being rejected,” Smuts wrote.

The fallout of that leak touched off a robust media debate on the role of transformation in the judicial system, and the commission took a day of hearings to discuss its contents. 

The debate

South African Constitutional Court Chief Justice Mogoeng Mogoeng, who also chairs the JSC, rejected the notion that white males were overlooked and noted that one such candidate had just been appointed to the Supreme Court of Appeals. 

Most of the commission's hearings on the document took place behind closed doors. But by the end of the week, Smuts had resigned from the JSC. 

He said it had become “devastatingly” clear that his understanding of the JSC and South Africa’s constitution was “far removed” from the opinion of the majority of the commission. 

Smuts cited several candidates, not all of whom were white, who were passed over for selection as judges. In an April 2011 case, for instance, the JSC chose to keep two positions on the high court vacant rather than appoint a candidate, despite having three qualified candidates.

The JSC gave no substantive reason for having turned down the applicants. Following a lawsuit, the South African Supreme Court of Appeal declared the lack of reasons to be “irrational.”

“During my time [the JSC commission] has left a trail of wasted forensic talent in its wake,” Smuts said.

Judging transformation

South Africa is considered to have one of the world's most progressive constitutions, and its judiciary is a place where arguments are expected to be discussed on merit alone – even when they run counter to powerful political interests. But questions over its effectiveness frequently return to one flashpoint: race. 

And by that measurement, judges, like many kinds of leaders in South African society, fail to reflect the country at large. 

A 2009 report, for instance, showed that 92 of 201 Superior Court judges were white in a country where less than 10 percent of the general population is.

Similarly, black Africans occupy only 12.3 percent of top management positions in South African companies, though they make up almost three-quarters of the workforce, according to a study released Thursday by the South African Department of Labor. The figures were almost inverted for white South Africans, who make up just 11.3 percent of the workforce but hold 72.6 percent of top management jobs.

However, unlike leadership in corporate South Africa, judges are selected in a public way, allowing media and the public to participate in a wide conversation about the whys and hows of who is selected. 

Seen through a 'prism of race'

Black Lawyer’s Association Deputy President Kathleen Dlepu told local news website iol.co.za that Smuts had resigned because he did not support the process of transformation.

Ms. Dlepu was not alone in her criticism of Smuts, with many on radio and social media suggesting the lawyer, who is white, is a racist.

However, University of Cape Town Law Professor Pierre de Vos says the dispute over judicial appointments was more a symptom of how debates are framed in South Africa than the reality of the JSC.

“In South Africa, everything is about race or people make it about race because that is the story they have in their heads,” Mr. de Vos says. “So I think that people are almost incapable of seeing these kinds of debates and questions outside of the prism of race because of our history.”

Former Constitutional Court Justice Johann Kriegler argues that a criticism of the JSC over race may be a distortion. The real problem is that the appointing commission has become unduly “politicized.” Too many of the JSC members are selected by the ruling ANC party, he says. 

However, Kriegler adds that black members of the JSC are unlikely or feel free to make the same discrimination complaint as Smuts. Black members may feel they could, however unfairly, be perceived as anti-transformation, he says.

“I don’t blame people who don’t have the guts to do that," he adds. 

De Vos says that while attention had been focused on the race of its selections, not enough attention was paid to their judicial philosophies.

“Often both black and white, male and female judges are appointed who are not as aggressive in terms of their judicial philosophy, and not as willing to check the power of the executive and legislative – which is necessary in a constitutional democracy," he says.