LAST year, the majority of acting judges in the High Court in Cape Town were white and overwhelmingly male, at a time the Western Cape was under intense scrutiny for lack of transformation.
Acting as a judge is an important foot in the door for candidate judges, and the lack of women and black acting judges has long been cited as a bottleneck to transformation.
Concerns about how acting judges are appointed, and the need for guidelines, have been raised in the Judicial Service Commission.
Justice Minister Michael Masutha, who signs off on acting appointments, has been particularly vocal about the lack of transformation in the Western Cape.
But advocates at the Cape Bar say he is not to blame for the race and gender profile of the province’s acting judges. Nor is Western Cape Judge President John Hlophe wholly to blame, they say.
A member of the transformation committee of the Cape Bar, Alasdair Sholto-Douglas SC, speaking in his personal capacity, says Judge Hlophe has made "considerable efforts" to bring black women on as acting judges. He refers to advocates Penelope Magona and Ncumisa Mayosi as examples. Both have had acting stints in the High Court in Cape Town.
However, a look at who was appointed to act last year paints a different picture. In the first and second term, only one of the eight acting judges was female. In the third term, there were two of nine. In the fourth, it was back to one. Other than the third term (in which there were five black to four white acting judges), the profile of acting judges was also majority white. Over the whole year, 13 of the 20 acting judges were white. Only four were women.
Judge Hlophe could not be reached for comment. But Mr Masutha says the demographic profile of the courts’ acting judges is a "reflection of the inordinately unrepresentative pool" from which acting judges are appointed.
"The racial and gender composition of the judiciary mirrors the sad picture of the advocates and attorneys’ profession, which are the main feeder to the bench," he says. Mr Masutha is referring to recent statistics that say that out of 23,000 attorneys, fewer than 8,000 are black. "The picture is gloomier in the advocates profession," he says.
Advocates for Transformation member in the Western Cape Thabani Masuku agrees that the problem lies with the profession — with a small pool of black and woman lawyers experienced enough to be appointed to act.
The judge president and the minister can only work with what they have, he says. Transformation has to happen from below.
He says the situation had been so bad in the Western Cape that many of the African judges on the High Court in Cape Town had practised as lawyers in other provinces before they were elevated to the bench.
Cape Bar Council chairman John Butler SC will not comment on acting judges. But he says while there is "some way to go" when it comes to transformation, the bar is trying very hard to attract and keep black and women practitioners, and strides have been made.
He says since 2013, only about five black advocates left the bar, compared to about 55 white advocates. More white men left than any other demographic. And in the past five years, 100% of black applicants who applied for silk were ultimately successful, compared to about 52% for white males. The average seniority of successful black silks was 13 years, compared to 21 years for white males.
Mr Sholto-Douglas speaks of practical challenges in securing acting judges. Sometimes acting appointments have to be made at the last minute and the pool of "reliable and dependable" candidates available on short notice is small, he says. Acting as a judge is "incredibly disruptive" to advocates’ and attorneys’ practices. Planning ahead is crucial, but not always possible, he says.
But a senior lawyer, who does not want to be named because of professional consequences, says it is not always necessary to make acting appointments at the last minute.
If Mr Masutha and Judge President Hlophe had a proper plan in place — "if they were serious about transformation" — they could headhunt more black and women candidates, he says.
Mr Masutha says guidelines on acting appointments are in the pipeline, as are efforts to resuscitate programmes to fast-track women.
"It is not all doom and gloom," says the minister.
