CLC Kicks Off Amidst South Africa’s Transformation Row

 Participants at the 18th Commonwealth Law ConferenceThe 18th Commonwealth Law Conference took place last week in Cape Town, South Africa. Funke Aboyade, who was in Cape Town, highlights the salient aspects…

A Nasty Row…
Amidst a row over accusations of reverse racism in the appointment of judges in South Africa, the Commonwealth Law Conference, the 18th in the series, kicked off last Monday in South Africa’s scenic Cape Town.
In a rousing address, at the Cape Town International Convention Centre, which held delegates spellbound in terms of sheer charisma and delivery, South Africa’s Chief Justice Mogoeng Mogoeng warned his countrymen and the media, ‘We would do well to tread gingerly’.
Reeling out a string of statistics, Mogoeng who is Chief Justice of the Constitutional Court of South Africa and who also heads the country’s Judicial Service Commission dismissed recent allegations of reverse racism in judicial appointments as unfounded and unfair.
He said, ‘We need to encourage women and black students to pursue law as a career and find a way to give them what to do when they qualify because many were forced to fall out of the legal profession because quality work was not forthcoming’.
Other contributory factors he said included male chauvinism in the legal profession as well as the reality, 19 years after the end of Apartheid, that their ‘white compatriots are still at the commanding heights of the economy’.
This in essence meant they would then naturally brief white attorneys and advocates for any legal work since ‘human nature dictates that you brief who you know’.
‘So, few of them (women and blacks) make it’, he explained.
‘We should begin to prick their consciences so that black legal practitioners can have a chance, otherwise soon and very soon, the profession will soon dry up and South Africa will return to the situation before 1994!’ he declared, even whilst conceding that that was an extreme and improbable scenario.
Just days earlier, a prominent member of the Judicial Service Commission (JSC), Izak Smuts SC, had resigned his membership of the body, describing the track record of the commission during the time which he served on it (since 2009) as ‘disturbing’.
The Commission, he alleged, had repeatedly been involved in litigation regarding the manner in which it directed its affairs. None of that litigation, he pointed out, had ultimately met with success.
‘The image of the commission has been tarnished in consequence’, he said.
‘During my time on the commission, it has left a trail of wasted forensic talent in its wake which would be remarkable in a society rich in human resources, and is unintelligible in a society such as ours in which, for reasons of our discriminatory history, such resources are scarce’, he said.
‘Intending no insult to many whom I leave out of this list, which would otherwise be far too long, I raise only the names Cachalia, Budlender, van der Linde, Paterson, Gauntlett and most recently Plasket, as examples of intellectual forensic excellence, steeped in the values of the constitution, all of whom have, during my term of office on the commission, been rejected by the commission for judicial promotion or appointment.

‘I raise these names to illustrate that there is something deeply concerning about the commission's approach to the intellectual leadership of our legal community. That approach has resulted in a massive loss to our courts of the opportunity to utilise optimally the finest available intellectual prowess. In a country still seeking to establish a new value-based foundation for its continued existence, this waste of talent, experience and values is not rationally explicable.

‘I have, during my term on the commission, on numerous occasions been in despair at the outcome of its deliberations, and have sought advice from colleagues and former colleagues who had gone on to higher office. I am grateful for their support and guidance. They have repeatedly encouraged me to stay the course and speak truth to power. I have tried to do so up to this point.

‘While the commission remains in existence, it is a very important body in our constitutional dispensation (the issue of the desirability of the continued existence of a largely unaccountable judicial appointment authority is a matter for debate elsewhere). For as long as we are still permitted to have an independent advocates' profession in this country, it is important that the non-aligned majority in that profession has a voice on the commission.

‘It has become increasingly apparent to me, and has been made devastatingly clear during the proceedings of the commission this past week, that my understanding of the constitutional values, the constitutional role and duty of the commission, and even of basic rights such as those of human dignity and freedom of speech, is so far removed from the understanding of the majority of the commission that it is not possible for me to play an effective role on the commission.
‘The time has come for someone else to try and succeed where I have spectacularly failed’, Smuts said.
With those scathing and damning words on Friday April 12, Smuts resigned. It was no surprise therefore that on Monday April 15, Chief Justice Mogoeng Mogoeng came out smoking.
Earlier in his remarks which were delivered without prepared notes, Mogoeng, no shrinking violet, had urged the media to ‘provoke discussions about land redistribution, about those excluded from the economy and about the transformation of the judiciary.’
‘We should take stock so that we do not find ourselves in the situation that our neighbouring countries have found themselves in’, he said, his subtle reference to Zimbabwe not lost on the audience.
‘We dare not be selective in addressing these issues’ he warned as he pointed out that ‘greed and irrationality almost destroyed this country’.
‘The surest way to weaken, and ultimately destroy, democracy is to weaken the country’s legal profession and delegitimise its Judiciary’ he said to great applause by some 1,300 delegates which comprised at least 20 Chief Justices, including Nigeria’s, of countries from across the Commonwealth.
Mogoeng is no stranger to controversy and stands accused, for instance, by women groups of being too lenient in sentencing in cases involving rape and violence against women.
A group, Freedom Under Law, has now threatened court action against the Judicial Service Commission over this most recent controversy of balancing the constitutional provision on the appointment of judges which mandates that candidates be appropriately qualified, as well as fit and proper, but which also mandates that South Africa’s racial and gender isues be balanced.
In view of the country’s Apartheid past, walking a fine balance would clearly be no mean feat and understandably, hackles are raised and tempers flaring in this latest row over transformation versus merit.
During his address last Monday, Mogoeng came down hard on Smuts and the media, urging them to call a spade a spade, obviously taking exception to the media’s description of an internal memo Smuts had written as ‘leaked’ whereas, he alleged, Smuts had actually distributed it to the press before the JSC could table it for discussion.
In the highly critical memo, Smuts had raised concerns about the perception that the Commission was unfairly overlooking white males as judges and was biased against them.
He had challenged the Commission to ‘at the very least come clean’ rather than put those candidates through a ‘charade of an interview before being rejected’.
Smuts had also called for ‘an honest debate’ on the issue.
However, Mogoeng pointed out in his address that when South Africa became a democracy in 1994 she had only two female and three black judges out of 170.
He dismissed the ‘suggestion that there is some hunger maybe to get even with our while male compatriots’ and said that the race factor was ‘contorted’.
He also dismissed Smuts’ call for a debate, declaring, ‘Transformation does not require to be defined! We know what the problem is; we’ve got to address it and address it responsibly’.
The arguments in the Transformation row easily bring to mind similar arguments in Nigeria (and other African countries with ethnic, religious or other diversities) about the federal character requirement of the Constitution in political as well as judicial appointments.

The Welcome…
Earlier in a brief but remarkable ceremony, some 70 boys and girls of the Tigerbird Childrens’ Choir had entertained the audience comprising lawyers, judges and academics from the 54 nation member Commonwealth with an impressive ensemble of songs which included both versions of South Africa’s national anthems.
Their angelic voices had the audience applauding again and again.

Warm Greetings from HM
CLA President, Boma Ozobia, had during her Welcome Remarks read out a letter of warm wishes from Her Majesty, Queen Elisabeth 11.

About CLA…
The Commonwealth Lawyers Association (CLA) was formed in 1982 with the aim of promoting the rule of law and professional standards in the Commonwealth.
The Association is represented at meetings of the Commonwealth Heads of Government, as well as those of the Commonwealth Law Ministers and Senior Officials, and is an official partner of the Commonwealth Secretariat.
The Commonwealth comprises 54 countries spanning six continents.
The theme of this year’s conference was ‘Common Challenges – Common Solutions’.

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