Home court OPINION: Democratising judiciary vital for transformation

OPINION: Democratising judiciary vital for transformation


Whilst my own dream of rising to the ranks of Judge may have been deferred, it is heartening and commendable that President Cyril Ramaphosa has set in motion a process that can speed up the quite necessary democratisation of our judiciary, writes Dr Wallace Mgoqi.

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THE TRANSFORMATION project in South Africa is all-inclusive, encompassing all societal structures, and necessarily must include the judiciary. None of these institutions and structures stand above the changes that must take place.

My recent nomination to take up the post of Chief Justice, a great honour, effected a certain amount of personal reflection on why it is we generally afford brilliant opportunities in critical posts to those whose years are advanced, and just how much transformation is still required.

Whilst experience and wisdom can of course only be gained over time, there is argument for promoting younger minds to posts of this nature. People whose intellectual rigour and fairness of mind are matched by the energy, patience, and health to meet the challenges thrown at them and stay the course.

In fact, there is a need for a wider shake-up of the judicial appointment system.

My nomination aside and my stint as an acting judge in the Land Claims Court from January 2014 to October 2019 (after invoking Section 175(2) of the Constitution), I have had personal experience of the bullying, old school, gender-biased mindset deployed by certain senior members of this judiciary.

Men, whose positions wield much power with the ability to block appointments for example. Some of them, with respect, regard this as their own fiefdom, only appointing persons they favour, not on their merit.

At present, for instance, only Heads of Court can appoint Acting Judges. It has been forgotten that acting positions are a vital cog in, and critical entry points to the judicial office as part of the transformation agenda. For this reason, the power to confer appointments should be treated with the importance it deserves and should not be left to only one person to make.

Separation of the powers is an imperative, particularly in a country, which is still witnessing corruption of pandemic proportions. However, I do believe that there is scope for the future office of the Chief Justice, to establish a wider body whose role will be to consider and appoint acting posts and ensure that our judiciary becomes more representative, not only of colour, but of gender too.

This will hasten the process and broaden the pool of judicial officers to draw from for senior positions in the judiciary, and inject some lifeblood into this sector. It will address issues of diversity, inclusivity, and equity in the ranks of the judiciary. It will also fulfil our Constitutional mandate for equality, human dignity, life, freedom and security of the person.

We need to move to a place where every young lawyer, regardless of their background and networks, must feel secure that as regards their progress in their chosen profession, nothing will be an impediment, preventing them from rising to the top.

In stepping aside in the selection process for the position of Chief Justice, I hope that it will pave the way for others to consider the same, which will then open the way for greater numbers of young aspiring lawyers looking to rise to the highest echelons of the legal profession. Only then, will society be the beneficiaries of the democratisation of our judiciary.

Judge Damon J Keith, in his book, What happens to a dream deferred: An assessment of civil rights law twenty years after the 1963 March on Washington, said: “I have not yet given up on the South African idea of equality and justice for all South Africans.

“This nation stands before the African continent and the world as perhaps the last expression of the possibility that a people can devise a social order where justice is the supreme ruler, and law but its instrument; where freedom is the dominant creed and order its principle; and where equality is common practice and fraternity the common human condition.

“We may be the last generation of Africans south of the Sahara that has the opportunity to help our nation fulfil its promise and realize its potential. Our generation may be the last to have a chance: a chance to balance the scales of justice, open the doors of opportunity and break the chains of bondage.

“Although Dr Nelson Rolihlahla’s seems to have faded in recent years, it remains the best dream we have, and the truest South African vision for a better tomorrow.”

Whilst my own dream of rising to the ranks of Judge may have been deferred, it is heartening and commendable that President Cyril Ramaphosa has set in motion a process that can speed up the quite necessary democratisation of our judiciary.

We must, however, guard against it being done in half measures, and, as in a true democracy, everyone is to be held to account by the people.

* Dr Wallace Amos Mgoqi is Ayo chairperson. He writes in his personal capacity.

** The views expressed here are not necessarily those of the DFA and Independent Media.


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