Professor Zihad Motala, who was greeted by name when the chief justice delivered his controversial speech of 6 July 2013 to the members of Advocates for Transformation, was obviously not listening too carefully during the speech. Especially not so when the chief justice suggested that the time for “brutal introspection” on matters of transforming the legal professions in South Africa had come. Both the professions and the judiciary itself exist to serve the interests of justice, not the entitlement aspirations of anyone, no matter how previously oppressed, deprived or disadvantaged.
Instead of engaging in introspection of any kind, Motala has produced an astonishing venting of bile. His views purport to be a defence of the chief justice’s decision to descend into the arena of debate around briefing patterns and the structure and future of the legal professions in South Africa. In the same speech the chief justice stoutly defended the modus operandi of the Judicial Service Commission (JSC), which he chairs. This is the subject matter of a challenge which the Helen Suzman Foundation (hardly an apartheid apologist) has pending in the High Court. This challenge, which will inevitably end in the Constitutional Court, involves a head-on collision between the values of the Constitution and those of the national democratic revolution as applied by the majority of the members of the JSC. This clash of values has crippled the proper functioning of the JSC and has obscured the true interest of justice.
Instead of engaging with the merits of the arguments around ensuring governance standards in the JSC that are open, accountable and responsive (as required by the Constitution), Motala takes a tilt at the critics of the chief justice. He does not engage on the meaning of the phrase “… the racial and gender composition of South Africa must be considered” when appointing judges, in the context of a Constitution which sets non-racialism and non-sexism among its foundational values. He ignores these fundamental considerations, both right up there with the supremacy of the rule of law, and instead waxes lyrical about unwarranted preservation of past privileges; as if those with whom he disagrees have any power to so preserve, when in truth they do not. The equality provisions in the Bill of Rights, especially the imperative to promote the achievement of equality, are entrenched in the law. Reverse unfair discrimination is illegal. Lawyers are meant to serve justice, not envy big briefs.
Perhaps because he cannot escape the clear constitutional requirements that only “appropriately qualified” persons who are “fit and proper” may be appointed to the South African bench, he rails against the lack of transformation of bench, bar and attorneys profession as if mere pontificating will be able to address the ailments of the system as he perceives them.
The only sustainable way in which to address the apparent shortcomings is through improved legal education in SA. Unless and until all new graduates from all universities which offer the legal training needed to become a proper lawyer are playing against each other on a level playing field, the disparities that exist will continue. Graduates who are not fully functionally literate, with a mere four years of undergraduate university life behind them, do not stand a chance of competing successfully for work from the litigating public as attorneys, for briefs as advocates, and for meritorious elevation to the bench. The desire of litigants to win their cases will forever ensure that they brief the best available lawyers. Success in serving justice is not a matter of “transformation” entitlement; it involves careful study, arduous preparation and a lot of hard work.
The overhauling of the legal education system is a first step to transforming all disadvantages of the past into the promotion of equality of opportunity in the legal professions and indeed in society in general. Despite the obvious need to address the deficiencies in the education system, very little has been achieved to make it possible for those who choose the law as their profession to compete for work on a level playing field. Those who do not have the benefit of decent schooling and tertiary education at a posh university in SA are logically and understandably at a huge disadvantage in their ability to rise to the level of achievement reached by those who do reap the benefits of superior educational opportunities. That so many do overcome previous disadvantage is a tribute to their individual tenacity, and not to the qualities of the system in which they work. It is surely not the fault of Motala’s alleged apartheid apologists, 20 years after the end of apartheid, that so little has been done to address the deficiencies in the education system. So disinterested and disconnected is he that advocacy skills training, proper pupillage and legal education do not even flicker on his “brutal introspection” radar.
Motala also ignores the undeniable fact that the competition authorities in SA have not taken any steps to shut down, as anti-competitive institutions, the bars that operate at the seats of the High Court around the country. The specialised and exacting work on the interests of justice that members of the bars do, especially for poor litigants and in public interest litigation, is done for the general good of society, sometimes for free and sometimes on contingency. The divided nature of the profession gives the poor a far better chance of access to the talents of worthy advocates than would be the case if all good advocates were swallowed into the big firms of attorneys in a fused profession. Conflicts of interest would abound and poor citizens would lose out on using their services. The proponents of the Legal Practice Bill do not appear to appreciate this.
It is unseemly of Motala to stoop to making personal attacks on those who are critical of the stance adopted by the chief justice. It is surely their right to express an opinion that is different to that of the chief justice and to voice well-founded misgivings about the propriety of the descent of the chief justice into the contestation that is normally played out finally in his court by litigants there, not by the justices, whose function it is to uphold the law and the constitution, without fear, favour or prejudice. The chief justice, by himself descending into the arena has shown favour toward the line of thinking that the majority of those who serve under him in the JSC have embraced. He has, in this way, displayed prejudice against those, like the Helen Suzman Foundation, who have a diametrically opposed interpretation of the Constitution, untrammelled by revolutionary claptrap. The JSC’s current interpretation renders its modus operandi invalid for want of compliance with the foundational values of the Constitution and for its inconsistency with a proper interpretation of the requirements of “appropriate qualification”, “fitness” and “properness”. The correct context within which to take into consideration matters of race and gender in selecting judges in a non-racial, non-sexist constitutional order seems lost on Motala. It is sound law that race and gender only count once the basic requirements are in place and then only to ensure that, if there are too many persons of a particular race or gender on a particular bench, then, as between two or more candidates of roughly equal merit, the candidate of the under-represented race or gender should be preferred. This is surely not so far-fetched or untenable as to justify the type of vitriolic dismissal of the argument against his posturing that Motala espouses with frothy zeal.
The questions that Motala assiduously avoids are: “How will the JSC nurture a non-racial and non-sexist society by persisting with its ill-considered racist and sexist selection criteria in respect of candidates for the bench?” and “How is the proper administration of justice promoted by appointing mediocre or even weak candidates for the judiciary in preference to excellent ones on grounds of race and gender?” Most importantly: “What will become of the integrity, impartiality and independence of the bench when it is populated exclusively by deployed cadres of the national democratic revolution”?
Paul Hoffman SC
22 July 2013.