Have our courts completed the transformation process?
Can we be said to have completed the transformation process in the judiciary?
In an article in the Sunday Tribune, our Chief Justice has gone on record and said “…the court system has been transformed. The prosecution and the police have been similarly transformed.”
“The courts system has been transformed so that all courts up to the Constitutional Court are led by black men and women, Chief Justice Mogoeng Mogoeng told the Black Management Forum on Friday, notes a Sunday Tribune report. Speaking at the forum’s 40th anniversary celebration, he said 65% of the country’s judges were now black. ‘There are 1 233 magistrates, of which 741 are African, which represents 60%, and 545, or 44%, are women. Seven of the nine Regional Court presiding officers are Africans – 78%. Of the 17 Chief Magistrates, eight are African and 10 are women,’ he said. ‘Nelson Mandela said he felt like a black man in a white man’s court because the police officer, prosecutor and the judicial officer were all white. Now the court system has been transformed. The prosecution and the police have been similarly transformed. Madiba would be proud to learn that his dreams are fast becoming a reality,’ noted Mogoeng.”
Does that mean our work here is done?
We’d argue partially, but not completely. In the constitutional transformation process, we are but a small way in to the project. The transformation in the judicial system so far has been in large part approached from the point of view of race and gender transformation. The Chief Justice himself often asks questions in the JSC designed to elicit the views of candidates on race and gender transformation. We have, in a democratic dispensation, remade our bench in our image. But is that enough?
The Constitution creates a culture of justification, in relation to state and private power, the consequences of which we are still grappling with. According to Cora Hoexter, the “transformation of South African … law demanded a movement away from formalistic and “coded” judicial reasoning and towards a more substantive style of reasoning, in accordance with the substantive vision of the democratic Constitution.”
How do you know if your judges are in fact moving to reasoning in accordance with the constitution? You read their judgements, to be sure. But you also engage with them at the time of their appointment to gather whatever evidence you can of their understanding of and commitment to the constitutional project. Transformation is far harder than simply asking “where are the women?” as our Chief Justice does, and rightly so. It’s an important part of judicial selection process, and the JSC will continue to grapple with until long after demographic transformation is achieved.