TRANSFORMING THE TRANFORMATION DEBATE - ADDRESS TO NGO NDIFUNA UKWAZI - CAPE TOWN 10 SEPTEMBER 2013
Panel members: Justice Zak Yacoob, Ms Fatima Hassan, Ms Rekha Jaga, Izak Smuts SC
Thank you for the privilege of the invitation to share this platform with people I admire and respect. I salute also the bravery - some may say foolhardiness - of the organisers in inviting on to this platform an individual like me who has been decried by an organisation styling itself the Higher Education Transformation Network as someone who is known to "fraternise, booze and braai" with such notorious fellow lowlifes as Jeremy Gauntlett and Paul Hoffman.
Without wanting the facts to interfere with a good story, I must record that although the invitations to such occasions of revelry regrettably never reached my chambers, I trust they were enjoyable, even in my absence. But I raise the name of that organisation for future reference, for if it were to live up to its name, it could make a contribution to the subject matter of this debate.
I commence by stating the obvious - that the topic of this discussion embraces a myriad issues I cannot possibly cover in the ten minutes allocated to me at the commencement of these proceedings. I shall simply raise some themes, which we can discuss in greater detail later on.
When I address transformation this evening, I do so from a perspective which accepts that the constitutional project embarked upon since 1994 is aimed not at the replacement of the privilege and advantage previously vested in one race group and one gender with an equivalent privilege to be vested in an alternative race group or gender, but rather at a genuine transformation from a society founded on race and gender discrimination, suppression of human rights and an authoritarian system of government, to one premised upon human dignity, equality, the advancement of human rights and freedoms, constitutionalism, and the rule of law, with all that that encompasses, including an independent judiciary and an independent legal profession to serve that judiciary.
Those objectives are noble, but were never going to be easy to achieve - 342 years of race and gender discrimination in the spheres of education and professional advancement saw the legal profession and the judiciary dominated overwhelmingly by white males, an untenable situation in a society which styled itself non-racial and non-sexist. But it also saw the legal professions and judiciary dominated by conservative elements that had learnt, even if not always comfortably, to live alongside racism and sexism, authoritarianism and suppression.
How was that to change? I record that I approach the issue of transformation of our legal system unashamedly from the point of view that our judiciary should be drawn overwhelmingly, if not exclusively from the ranks of those who practise in our courts.
I know that this approach is, in itself, a topic of not insignificant debate. But I am convinced that our courts are best presided over by those who have honed their skills in those courts - who have learnt over the years to assess evidence, to dissect and analyse arguments, and to appreciate what the rules and laws of procedure require of a smooth-functioning court.
If necessary, I can in due course expand on why I hold that belief. To achieve a genuine transformation of the judiciary would, of necessity, require a transformation of the legal profession. Advocacy in our courts requires language skills, oral skills, research skills, analytical skills.
Those who wish to enter into the legal profession without having received schooling and a tertiary education in which these skills are developed, do so at a distinct disadvantage. It is a tribute to those of my black colleagues who established themselves as leading practitioners during the previous dispensation that they did so despite the manifest disadvantages that a designedly inferior education system visited upon them.
Those who manage to access and thereafter wish to survive in the legal professions require opportunity to display their talents and build their reputations. It is a tribute to both black and women practitioners who established notable track records for themselves under the previous dispensation that they managed to overcome the substantial prejudices and obstacles which the prevailing order under the old dispensation placed in their paths. But as the statistics of 1994 reveal, they were still in a very small minority.
The impact of inferior education was not felt in the legal environment alone, but that environment is the subject of our focus tonight. What have we done since 1994 about the institutional inadequacies and discriminatory practices which held back disadvantaged people up to that time, resulting in a seriously skewed representation of race and gender in the legal profession?
While some of the better schools previously restricted to white children have become non-racial, I am not aware of any study that reveals that the general standard of education across the board has improved.
In fact, influential players have recently suggested that the abominable Bantu Education system offered more hope to young South Africans in its time than various education departments do currently. I see no evidence amongst those who arrive at and exit from tertiary institutions that basic principles of grammar have been inculcated at school. Trial advocacy is about persuasion - inferior language skills remain a significant disadvantage.
At tertiary level, some bright policy makers resolved that the premier law degree which qualified its achievers for the legal professions, and which previously required five years of study at a time when it was aimed predominantly at those who came from privileged schools, would now require only four years of study, including for many who came from less well-equipped and staffed schools.
I do not know whether this was premised upon some bizarre notion that an inferior secondary education would equip you better to grasp principles of law in a shorter time. Whatever the theory, it has not worked.
One of the casualties of the shortened course curriculum was language instruction - while some may view the erstwhile requirement of three language courses as excessive, there is now no language requirement. A lawyer without language skills is like a surgeon without a scalpel - ill-equipped for the task at hand. Language is the currency of litigation.
It appears to me that we have regressed, instead of moving to empower the historically disadvantaged to access the professions, by which strategy we would have broadened the pool from which the judiciary will eventually be drawn.
Possibly, the Higher Education Transformation Network could make a contribution by focussing on the transformation of higher education rather than the perceived social habits of aging white male advocates, so as better to equip those aspiring to enter the legal professions, amongst others.
Thus far, South African society has failed in genuinely improving broad-based opportunities for aspiring lawyers to enter the professions and rise to the top. We have failed to provide the educational base required to provide the foundation of our new society insofar as it may support a growing, independent legal profession.
In addition, there are other factors at play once individuals have, despite these challenges, managed to enter the professions. Briefing patterns are often and legitimately identified as obstacles.
Well-established attorneys firms, dominated by white male attorneys, often rely upon the old school tie network, which militates against opportunities for black and female advocates and correspondent attorneys attempting to make their mark. There is nothing remarkable about this, and it is not peculiar to South African society. People work more comfortably with those they know and understand.
But the biggest single litigant in our courts is the State. There is nothing to prevent the government of the day from giving precise and detailed instructions to the offices of the State Attorney to ensure an even and wide distribution of work amongst historically disadvantaged advocates and correspondent attorneys.
My personal experience in the courts suggests that a proper analysis of State Attorney briefing patterns would reveal significant degrees of crony briefing amongst a minority of black and women practitioners, which perpetuates the broad-based discrimination against other historically disadvantaged lawyers.
While the slow rate of transformation in private sector briefing patterns is a matter of significant concern, the right of litigants to choose their legal representatives is internationally and constitutionally recognised, and no government diktat can legitimately be imposed upon private practitioners to change their briefing patterns.
That said, the organised professions could and should certainly do more to provide opportunities for historically disadvantaged practitioners. Where the client litigant is the State, however, there is no excuse for not creating more opportunities than are at present being provided. And the reality is, when lawyers with talent are exposed to others, even in circumstances where they are on opposing sides, and often in consequence of such circumstances, reputations are built and practices expand.
Within the professions, on the other hand, there is legitimate criticism to be levelled at the failure to provide effective and structured programmes better to accommodate the pressures of child-bearing and motherhood on female practitioners.
The introduction of policies opposing sexual harassment and small-scale subsidies for, or exemptions from professional dues based on maternity requirements, simply do not begin to address the challenges which, experience has taught us, militate very strongly against professional progress by female practitioners. It is little wonder that, although there has been a significant change in the racial profile of the professions and the judiciary, gender representation remains significantly skewed.
Overall, until there are meaningful opportunities for progress and success in the litigating professions for historically disadvantaged practitioners, the pool from which the judiciary can properly be appointed will remain depressingly small. Peter Bruce in an editorial in Business Day written shortly after my resignation from the Judicial Service Commission remarked that the only way to get experience is to get it. Without opportunity, you can't get it.
May I add one curved ball to this debate? For as long as the approach of the JSC is interpreted or perceived to be weighted against the appointment of white male candidates to the judiciary, and in consequence, few experienced white male candidates make themselves available for judicial appointment, the legal professions will continue to be dominated by white male lawyers, as the formerly traditional efflux of experienced senior lawyers to the judiciary will not occur.
As a result, while these practitioners remain in practice, the opportunities for younger and historically disadvantaged members of the professions to rise up and make an impact will be reduced. Which litigant with resources would not opt to be represented by the most experienced practitioners available? No-one said it was going to be simple.
Tonight, however, I want to go beyond the demographic stereotype in the debate on transformation of the professions and the judiciary. Important as demographic normalisation is, what I term mind-set transformation is truly critical. There were many very clever and competent lawyers who kept the previous system in business.
The transformation of our society contemplated in the constitutional project goes way beyond eliminating the racial and gender discrimination of our past. It envisages an entirely different kind of society - democratic, accountable, transparent, embodying the rule of law, built upon a separation of powers, and reliant upon an independent judiciary to protect citizen and organ of State alike. What have we done to ensure that our professions and our judiciary are transformed to promote that new society?
Returning to the educational environment, at school level, we offer a course entitled "Life Orientation", but without demeaning this endeavour to the extent of suggesting that it teaches little more than not to eat your peas with your knife, I pose the serious question as to what is being done in schools to imbue scholars with an appreciation of the objects, structure and values of our Constitution, so as to ensure that, when they leave school, they have a sense both of what the new society demands of them, and what it should be offering and indeed guaranteeing to them. Not enough, I'm afraid.
A structured, detailed curriculum traversing constitutional principles, structures and values could lay the foundation for a new generation of citizens who would add value, inter alia to the administration of justice. By saying this, I am not advocating saluting the flag in the classroom of a morning.
Within the legal professions, I give away no secrets when I record that, for many years after the arrival of the new dispensation, many diehards in practice openly professed that the new Constitution had not changed the law at all, except in minute and esoteric areas.
If the Legal Practice Bill had been directed at a proper regulation of the legal professions, rather than their control, prescripts for continuing legal education would inter alia have required a particular constitutional focus to ensure that practitioners develop and retain a more acute understanding of the fact that the Constitution has indeed set out to change our law and the society it governs fundamentally.
What does the Judicial Service Commission do to ensure that candidates for judicial appointment who appear before it are steeped in the values and founding principles of the Constitution? To paraphrase, how does the commission ensure that candidates for appointment to the judiciary are both appropriately qualified and fit and proper?
While the entire interview process in the commission could do with significant revision, during the 3 ½ years that I served on it, there was depressingly little focus in the interview process on the candidates' understanding and appreciation of the values of the Constitution. The record will reveal that my own focus in questioning candidates was on their understanding of the rule of law. Remarkably few candidates during that period were even able to articulate a coherent formulation of what the rule of law is, yet many of those who could not present such a formulation went on to be appointed, inter alia charged with the interpretation of a constitution founded on the rule of law.
To the extent that others on the commission interrogated candidates about their understanding of the Constitution, the bulk of such interrogation came from members of the executive seeking to ensure that candidates understood (or in fact misunderstood) that their judicial function was not to place strictures upon the executive.
Why then my concern that there should be a greater interrogation of an understanding of the structures, values and principles of the Constitution? Because, unless we attempt to ensure that our courts are presided over and led by those steeped in and committed to those structures, values and principles, while the courts may change in appearance, there will be little change in their approach, and the delivery of justice as envisaged in the constitutional project will not be achieved.
Let me offer one example, a quotation from a post-constitutional judgment of the high court in a matter dealing with the status and constitutionality of courts administering African customary law.
The judgment, delivered by a former colleague of mine who was a highly competent court room lawyer, who would meet the requirements of those whose understanding of the need for transformation rests exclusively on issues of demographics, and who has gone on to greater things, contains the following passage:
"[T]here seems, in my view, to be no reason whatsoever for the imposition of the western conception of the notions of judicial impartiality and independence in the African customary law setting."
The requirement that our courts be impartial and independent is not a relic of colonialism - it is a prescript of the South African constitution on which we found our new society. Although the author of the judgment has subsequently, and to his credit, conceded that the later full bench judgment overruling his pronouncement was to be preferred to his own, in my view, the original approach on the part of a judge in the post-constitutional setting is nothing short of alarming. It is not indicative of a transformed judiciary, notwithstanding the race of the judge.
And so the message has to be - important as it is for our society to see that the judiciary is open to all, irrespective of race and gender, it is essential that our society can legitimately believe that our judiciary understands and embraces the values of the Constitution, and that it is equipped to give effect, along with the legislature and the executive, to the values and principles on which the elected constitution-makers sought to found our new society. Once that is achieved, we will have a transformed judiciary. And its precise demography will be of lesser significance in the democratic, non-racial, non-sexist society we would have achieved.
Izak Smuts SC
Click here to sign up to receive our free daily headline email newsletter