So you have to go to the bar to be a judge?
Not at all. This is where things have changed in the last 20 years. The composition of the Judicial Service Commission (JSC), and the process for the appointment of judges is now set out in the constitution.
For the JSC to appoint a person, they have the following criteria in terms of section 174 (1):
- Be appropriately qualified;
- be a fit and proper person; and
- they must consider the need for the judiciary to reflect broadly the racial and gender composition of South Africa.
There are no other legislated guidelines.
In order to meet these 174 (2) criteria, as they are called, the JSC has to ensure the transformation of the judiciary, as all other aspects of our society, in order to address the demographics of the bench, broadly defined, and to ensure that the bench would carry forward the project of a constitutional state, built on the values of equality and dignity.
However, the bar was and still, to some extent,is mostly made up of white men – a look to the bar nowdoes not show a pool of good women or black men and women candidates.
Previously women and black people tend to be attorneys, magistrates and academics. We believe that this is largely due to the financial constraints placed on those wanting to advance up the legal ladder:
Advocates do a year of what is called pupillage, which basically means working under a senior advocate for no pay for a year. After that, they set up their own ‘chambers’, which is pretty much an office, but they often rent that from the Bar, and also pay Bar Council fees.
Then they spend a while waiting for work and building a practice. That’s all time when they are not earning an income. On top of a law degree that lasts five or six years, that is another year with no income, money needed for chambers, and a year or more of not earning much.
If you left law school with debt, and earn no initial income, where does all that money come from? This is the crux of the matter and a clear reason why we were not seeing a broader spectrum of candidates applying.
While you may have saved up, or have family money, or have taken a loan – or all of these being viable options –there is no doubt that limited income and financial risk is a factor in which kind of work you do. This of course does not take into account the history of discrimination in the country, which played a more obvious role.
In 1994, taking all of these factors into account, the system was changed and it was agreed that magistrates, attorneys and academics could also apply to become judges. [Link: How do you become a judge] Now, you can be appointed as an acting judge, with any of these backgrounds, and if you acquit yourself well, you can then be appointed as a judge.