The selection of judges is always a contentious issue around the world but, typically, South Africans will simplify the issue to be merit versus transformation. Merit means white and transformation means black or woman.
The selection of judges is much more than that. It is an ideological issue, as one black advocate advised me.
A president appoints the judge who best agrees with his political views. In the US, President George Bush snr elected a Judge Clarence Thomas, a conservative black judge, even though black civil rights and women's rights organisations protested vehemently.
Judge Thomas was elected by the narrowest margin of any judge in the US. Likewise, a liberal president will appoint a liberal judge.
Transformation of the judiciary, as one retired Afrikaner judge once told me, didn't start with the black government.
It started with the Afrikaners. When they came to power, they transformed what was then called Victoria College, in honour of Queen Victoria, and renamed it Universiteit van Stellenbosch. They then made it easier for Afrikaners to get into law by dropping Latin as a requirement for law and introduced the B Juris degree.
The judge argued that Latin was an important language in a country with a legal system based on Roman Dutch Law, if only to read and understand old cases. But Latin was a barrier to Afrikaners, so it had to go.
The Afrikaners wanted to wrestle the judiciary from the Jewish jurists who were unsympathetic to apartheid. Nothing irritated the Afrikaner government more than the fact that the defence team of the Rivonia trialists was full of Jewish lawyers.
Jeremy Gauntlett studied at Stellenbosch. This was the go-to place in the 1960s. It had, after all, produced HF Verwoerd, the chief architect of apartheid.
But the centre of power shifted and the heavyweight lost his footing.
Mr Gauntlett, as one black advocate who has worked with him told me, is competent and hard working, but he is conservative and so he will always find legal arguments to justify his ideology.
As for the charge that he is acerbic? "That goes with the territory," I was told by a female black advocate who has appeared in the Constitutional Court. She said Justice Dikgang Moseneke can be a terror.
Indeed, we saw this when he tore into Justice Mogoeng Mogoeng during the JSC hearings for chief justice.
Mogoeng bleated like a little lamb when he said to Moseneke: "You don't have to be sarcastic, sir."
If the court case between Rivonia Primary School and the Gauteng education department is anything to go by, I opt for a transformed judiciary.
This is the South African version of the famous "Brown versus Board Education" in the US where the black judge Thurgood Marshall fought to overturn the law that justified racially segregated schools. In South Africa, school governing bodies are using the law to continue with discrimination.
I suspect that Gauntlett and his supporters are suffering from what I call "beaten by the black syndrome".
It is something that the man who beat Gaunlett SC would understand. It was most prevalent at the faculty of law at Rhodes University where some white students went into a depression when they discovered that doing better than black students was not a birthright.
It is not the first time that Advocate Mbuyiseli Madlanga has beaten the odds. At Rhodes University he had to contend with ex-Rhodesian professors who were hostile to black students.
"The doors of learning and culture shall be open," was the promise that the ruling party made to its voters.
It is the president's prerogative to appoint judges in whom he has the confidence that they will not use the law to shut those doors.
Written by: Muzi Kuzwayo
Picture credit: Business Day
- Muzi Kuzwayo is the author of Black Man's Medicine. This article was published on Business Day.