Exact representivity in the judiciary is ‘unrealistic’ – Moneyweb, 4 November 2015

A number of issues mean that the judiciary currently being able to ‘reflect broadly the racial and gender composition’ of SA isn’t possible.

By Sara Gon 

In the week of October 5 2015 a round of hearings by the Judicial Services Commission (JSC) was held. Seventeen places in the provincial divisions were being contested by 40 candidates.

Again some of the major issues were that of transformation and demographics. There is always something disquieting about this.

The requirements of the Constitution have been stated repeatedly. They bear spelling out for the purposes of discussion:

Appointment of judicial officers

174. (1) Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.

(2) The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.

(3)  …

It’s been said many times that representivity is the second consideration for appointment and while it must be considered, there is no obligation that it has to be applied each time. This is clearly not the situation in practice.

One of the problems facing the transformation of the judiciary is that insufficient black men and women are putting themselves forward as candidates. Of 31 candidates, nine were women – three of whom were recommended for appointment.

Chief Justice Mogoeng Mogoeng has lamented the fact that more black men need to make themselves available.

In a statement on the meeting of the National Executive and the Judiciary on August 27 2015, President Jacob Zuma said:

“The transformation of the judiciary and the legal profession are at the heart of our constitutional enterprise and the parties have a responsibility to strive towards its achievement”.

That probably best describes the conundrum [Mogoeng] finds himself in in achieving this goal. While there may be a number of steps that he has and can take to increase the number of black candidates, he is always going to struggle. The one reason is to be found in the statement itself.

The first and primary constitutional priority to appointing judges is that they have to be appropriately qualified. This means a candidate has to be an attorney or an advocate before he or she can be appointed to the judiciary. That is before considering whether they are fit and proper to be judges.

If the professions are not ‘demographically representative’ the applicants to the judiciary are unlikely to be.

There are other factors however. Successful black lawyers are often unwilling to give up very lucrative, private legal careers for comparatively less lucrative public ones.

Thirdly, the physical, resource and administrative conditions of many courts around the country are appalling. They are not attractive places to work in.

There are a myriad of reasons affecting the number of women who put their names forward. Many may include the discrimination and sexism during their careers.

But probably the provision that most confounds the ability to achieve representativity is to be found in clause 174(2) itself. In considering the need to reflect broadly the racial and gender composition of South Africa the JSC will be confounded for a very long time.

It is an artificial and dare one say naively idealistic idea that every category of employment in South Africa must reflect national demographics.

Institute of Race Relations (IRR) Political Analyst Dr Anthea Jeffery, in her book ‘BEE Helping or Hurting?’ (Tafelberg), notes that the Employment Equity Act is premised on the assumption that demographic representivity would be evident in every aspect of society if this ‘norm’ were not being undermined and thwarted by racial discrimination.

Jeffery argues that this view overlooks relevant differences in human capital as well as variations in other factors, such as median age. Jeffery points out that there are salient differences in age and educational levels overlooked by proponents of demography.

The consequence is that at this stage, the pool of black people from whom judges can be drawn in terms of clause 174(1) is not 80%.

According to the Law Society of SA as at May 2015 black male attorneys (African, coloured and Indian) comprised 24% of all attorneys, white female attorneys 23% and black female attorneys 14%.

With regard to advocates, the numbers are black males 14%, white females 16% and black females 4.5%.

There is another factor affecting representivity. Judges should be drawn from a community that has at least a certain level of experience in the legal fields. That usually means looking at people who are at least 35 years and older. This further narrows, in percentage terms, the extent of suitability as a judicial officer.

The need for more to change is undeniable. And the hoary old truth is that it is largely founded particularly on education.

However, given the currently eligible people for the positions, black representivity is greater than the achievable demographics. Currently more than 61% of judges are black.

Jeffery quotes Thomas Sowell, economist and social philosopher, who said: “A global perspective makes it clear that the even distribution or proportional representation of groups in occupations and institutions remains an intellectual construct defied in society after society.”

This does not mean that society and government mustn’t do everything possible to uplift its people, but it is not entitled to expect it to be achieved in exact proportion (or more) to the black population: the notion is unrealistic.

Sara Gon is a Policy Fellow at the IRR, a think tank that promotes economic and political liberty. Follow the IRR on Twitter @IRR_SouthAfrica.

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