{"id":59317,"date":"2015-12-09T10:47:45","date_gmt":"2015-12-09T08:47:45","guid":{"rendered":"http:\/\/www.myza.co.za\/what-the-pistorius-trials-tell-us-about-racism-in-south-africas-judiciary-the-conversation\/"},"modified":"2015-12-09T10:47:45","modified_gmt":"2015-12-09T08:47:45","slug":"what-the-pistorius-trials-tell-us-about-racism-in-south-africas-judiciary-the-conversation","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/what-the-pistorius-trials-tell-us-about-racism-in-south-africas-judiciary-the-conversation\/","title":{"rendered":"What the Pistorius trials tell us about racism in South Africa’s judiciary | The Conversation"},"content":{"rendered":"
Judge Thokozile Masipa during Oscar Pistorius' trial in the High Court. <\/span> EPA\/Kim Ludrook<\/span><\/span><\/figcaption><\/figure>\n

The state\u2019s successful appeal against the verdict in the Oscar Pistorius case brings the quality of work done by South African high court judges back under public scrutiny.<\/p>\n

This is not a new phenomenon in South Africa. But underlying the debate is much more than the quality of the country\u2019s judges. It is also about race and gender. South Africa\u2019s judiciary remains dominated by men and has a higher proportion of white judges compared to the country\u2019s race demographics.<\/p>\n

The public debate on the quality of High Court judges started receiving public attention in earnest during the formal interviews of the current chief justice, Mogoeng Mogoeng, in 2011. When he was nominated, his previous judgments as a High Court judge were thoroughly researched by various public interest organisations. The findings were damning.<\/p>\n

Questions were asked about how he became the judge president of the North West High Court division and how he eventually made it to the Constitutional Court.<\/p>\n

Public law professor Richard Calland described the episode as:<\/p>\n

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\u2026 a class warfare; a cultural clash between the epitome of the modern, progressive Constitution \u2026 and the reactionary, socially conservative world view of another place.<\/p>\n<\/blockquote>\n

Perhaps the debate about the quality of High Court judges after the high-profile Pistorius trial reflects a different cultural clash in South Africa. This is one in which the un-transformed legal profession all too often associates incompetence with black people.<\/p>\n

The need to defend Masipa speaks volumes<\/h2>\n

Black lawyers are regularly stereotyped and their competence questioned. The differences in judicial opinion, similar to the outcomes in the Pistorius case, are elevated to unfortunate magnitudes to portray the transformation of the judiciary as inherently bad.<\/p>\n

The Supreme Court of Appeal in the Pistorius decision was conscious of this point. It recognised that the successful appeal might generate adverse commentary about Judge Thokozile Masipa, the black female judge who heard the case in the High Court. In particular, it was clearly concerned about questions being raised about her abilities as a judge.<\/p>\n

The Supreme Court emphasised that:<\/p>\n

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\u2026 the trial judge conducted the hearing with a degree of dignity and patience that is a credit to the judiciary. The fact that this court has determined that certain mistakes were made should not be seen as an adverse comment upon her competence and ability \u2026 the fact that the appeal has succeeded is not to be regarded as a slight upon the trial judge who is to be congratulated for the manner in which she conducted the proceedings.<\/p>\n<\/blockquote>\n

This well-intended concluding paragraph is both ironic and unfortunate given the alarming way in which the court of public opinion disagreed with Masipa\u2019s initial judgement.<\/p>\n

There is no doubt that social commentary at the time was also racially prejudiced.<\/p>\n

It is unfortunate that the Supreme Court had to anticipate (rightly) the public discourse that might arise from its judgment, and that it felt the need to defend Masipa\u2019s competence.<\/p>\n

Had she been a white male whose decision was overturned, the Supreme Court would not have been compelled to defend him. His competence would not have come into question.<\/p>\n

The Supreme Court\u2019s concluding paragraph is a sad reflection of the fact that South Africa remains an inherently prejudiced society in which incompetency is associated with race.<\/p>\n

It also puts the spotlight on transformation of the legal profession as a whole. Transformation is about creating conditions that are open, bias-free and non-hierarchical. It is also about removing prejudices so that talent can flourish, unhindered by assumptions often linked to race and gender.<\/p>\n

Diversity is seldom debated as a pressing issue in the legal profession. The lack of diversity is usually only raised after interviews by the Judicial Service Commission for the appointment of senior members of the judiciary. One of its roles is to ensure the transformation of the judiciary. How it balances the need for racial and gender diversity often comes under scrutiny.<\/p>\n

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Chief Justice Mogoeng Mogoeng, left, with President Jacob Zuma. The judge\u2019s suitability as chief justice was questioned.<\/span> Reuters\/Siphiwe Sibeko<\/span><\/span> <\/figcaption><\/figure>\n<\/p>\n

The commission has done fairly well in increasing the number of black judges. But the situation remains dire. There are currently only five female judges out of 24 at the Supreme Court and three female judges out of 11 at the Constitutional Court.<\/p>\n

What does transformation really mean<\/h2>\n

The Centre for Applied Legal Studies, which is based at University of the Witwatersrand and uses law to protect human rights, has rightly affirmed that talent and diversity are not alternatives. Diversity after all is not inconsistent with talent and ability.<\/p>\n

For a robust debate about the quality of High Court judges perhaps there first needs to be an understanding of three questions:<\/p>\n