Tuesday, February 06, 2007

Black judges complain about criticism

The Weekender newspaper reported this weekend that some black judges at the Pretoria and Johannesburg High Courts were unhappy about senior colleagues and the Judicial Service Commission (JSC) discussing and airing bad decisions made by “inexperienced” members of the judiciary.

The Weekender:

The petition complains about The Weekender articles which quoted appeal court judges querying a number of decisions by “inexperienced” high court judges. The appeal court judges said these decisions indicated fundamental ignorance of basic legal principles or were in some other way seriously bad.

During the October JSC interviews, two candidates for promotion to the appeal court, judges Azhar Cachalia and Pete Combrinck, were also questioned on these issues and the 15 have objected to their answers.

The petitioners said that the chief justice should “take the lead in dealing with this negative reporting”. “Remember, we see these reports as impacting negatively on us, and as a direct challenge to us, especially the black judges”.

This is a delicate matter that reminds us how difficult and complex the process of the transformation of the bench has been and will continue to be in a divided and cultrally diverse country like South Africa.

There is a constitutional mandated need for the racial and gender transformation of the bench. But because senior and experienced black lawyers are not making themselves available for selection to the bench, less senior and more inexperienced lawyers now sometimes find themselves on the bench adjudicating on matters they do not know that much about.

This complaint must be understood against the background of subliminal racism that must be acknowledged to be widespread in our society but nevertheless difficult to pinpoint: without even knowing it, some people assume that most black people are intellectually or otherwise inferior and thus watch them for signs of that assumed inferiority.

When black judges without all the traditional experience start work, they must obviously feel under tremendous pressure because of such attitudes. In such an environment every mistake is amplified and given a racial taint, confirming the innitial prejudice of the traditionalist who remains unaware that the judgment he or she made is influenced by racial prejudice.

On top of that, the legal profession is notoriously snobbish and hierarchical, which means that some senior lawyers and judges are privately highly critical of new black judges because they feel the new black judges have not earned their positions.

At the same time, judges have a difficult job to do and must do it well. If, after being given support and guidance, some new judges fail to do their work properly, it is the duty of others to point this out.

I suspect that some – but not all - of the criticism levelled against black judges are influenced by racial prejudice. At the same time some of the new judges appointed by the JSC over the past ten years have never really been in the top of their class at either university or at the bar.

Because the excellent black lawyers can make millions in private practice, often the only black lawyers who make themselves available for the bench are the kind of mediocre lawyers who cannot make a good living at the bar.

In this they are no different from the thousands of lawyers of all races that practice throughout South Africa and muddle along without really needing to show flair or brilliance. Such lawyers are the backbone of the profession but are not made for the bench. The only difference is that some of them now find themselves acting as judges without the working habits or knowledge that would make such a job easy to do.

This is not necessarily good for the smooth running of the justice system.

If the black judges meant to suggest that they should be above criticism or that genuine mediocrity should not be pointed out and criticised, they are doing a disservice to the legal system. If they meant to suggest that criticism should be sensitive and considered and should not be based on racial prejudice, they have my vote.

What is important is for us all to debate these issues in a way that does not revert to name-calling and does not rely on racially motivated assumptions.


Anonymous said...

Dear Pierre

I found your comments very insightful and balanced. You are quite right that lawyers are constantly criticising from the ground in a "sniping" manner, and that is not helpful, but criticism at the upper levels, by colleagues and by the JSC, is a different matter and can only be helpful to ensuring that we have a strong judiciary that we can respect. Ann Skelton.

Anonymous said...

Hi Pierre
A fairly apt comment. It also holds true of the lower court judiciary. I was hardly flavour of the month a few years ago when I mentioned that certain district magistrates only applied for those posts (and got them) because they were too useless as prosecutors. In fact I have even been told by a chief prosecutor that "they have a good candidate available for the bench because they no longer want the person as a prosecutor". It now seems the same applies to posts in the Regional Court - judging by the short-listing process and any subsequent interview not much consideration is actually given to 'track record', ie no questions are posed nor enquiries done regarding the persons 'experience' on the bench before they are recommended for posts in the Regional Court. It is also no wonder then that in the last 2 years there have been more judgments setting aside regional magistrates' judgments than ever previously, and in most cases, for almost blatant procedural errors. One really wonders why the legislature saw fit to make it an automatic review requirement for sentences of 3 months imprisonment imposed by a district magistrate with less than 7 years experience (raised to 6 months thereafter) whereas Regional Magistrates with less than those 7 years experience can impose 15 years (excluding using the minimum sentence legislation) without so much as a check! (This leaves any accused with the hideously difficult task of applying for leave to appeal, etc.) Unfortunately the experience required to evaluate evidence cannot be learned from a textbook - it comes with years of interaction with human behaviour in a forum such as a court. Let us hope that all is not lost yet!
(A glance thru the transcript of my 'interview' before the Magistrates Commission for the post off Regional Magistrate indicates too that as soon as the aspect of 'competence' is mentioned, it is linked to race. [I commented on the competence of new appointees and was immediately asked if I was referring to Black appointments]). Such a pity that some peoples' aspirations exceed their own abilities and that they have to look for an excuse to hide behind as there are many very competent colleagues of all colours on the lower court benches who, with time alone, can do the whole judiciary proud.