Mogoeng seeks rounded judiciary

According to a report in Die Burger, he was the guest speaker at the annual lecture at the University of the Western Cape hosted by Advocates for Transformation. 'Our judiciary would suffer if we are influenced only by what blacks and women have to say,' Mogoeng is quoted as saying. He also warned that the pool of previously disadvantaged lawyers was becoming smaller. 'It is still predominantly white advocates who receive instructions from the state attorney's offices and it is rare that those advocates use women or black people as juniors.' Mogoeng emphasised again that there was no place for black would-be judges to be considered purely on the base of their skin colour. 'It would be naive to believe competence and colour are all that the Constitution requires in terms of transformation. I think, in order to move forward, we must place all those candidates who come forward in the hope that they will be chosen purely on the grounds of skin colour and competence under the magnifying glass. It is not just about colour and sex. It takes far more than a competent black attorney to represent black people. The person must have an appreciation of the ideals of the Constitution and commitment to the realisation thereof.' Full report in Die Burger

The relevance and value of silk status has been a theme of the latest round of JSC interviews, a topical issue because there is a case before court challenging the President's power, under the Constitution, to confer the status, notes a Business Day report. It says General Council of the Bar chairman Rashid Vahed SC has deposed to an affidavit in the case. One of the institution's famous opponents is Owen Rogers, a renowned silk himself. In an article in 2004, he questioned the necessity of silk status, saying it was an elitist, colonial relic. Not only was it unnecessary, but it was unhealthy - because it was conferred based on imprecise criteria and did not enhance the administration of justice. During interviews, commissioners referred to Rogers' article and also suggested that silk status impeded access to justice, because silks charged so much more for their services. JSC commissioner Krish Govender asked one candidate whether silk status meant more than 'virtually carte blanche entitlement to higher fees'. Of those asked, most senior counsel suggested it was debatable but generally favoured it. But Vahed was unequivocal. He said the institution of silk was 'a mark of excellence, bestowed upon one by one's peers and ones colleagues .... It gets to one after recognition by your colleagues that you've reached a certain level of practice.' Full Business Day report

There could be no lawful marriage without consent, said Advocate Shylock Ndengezi, talking about the custom of ukuthwala at the JSC on Friday. Horror stories of girls as young as 13 being abducted and gang raped by much older men and then forced into marriage in the name of ukuthwala are often reported in the Eastern Cape, notes a Business Day report. At JSC interviews for the Eastern Cape High Court, commissioner Jonas Sibanyoni said the issue had come up in Parliament's Justice Committee, when it debated whether ukuthwala should be banned as a form of human trafficking. He said it was argued that the custom, as originally practised, was not what was happening today and the custom should not be banned - because 'it's a culture, it's a tradition'. Eastern Cape Premier Noxolo Kiviet asked African male candidates what their attitude, as judge, would be to 'purported ukuthwala'. Attorney Duncan Dukada said the 'genuine' ukuthwala custom did not involve violence. When a woman was 'taken', she was immediately taken to the new home. 'The following day, they will go and report to the mother, to the parents of the girl, to say don't look for the girl, the girl is here. And she will not be touched. She will not be harmed. And if the parents disapprove of this intended marriage, they would say so.' The man would be fined. 'And that would be the end of the matter. That was proper customary law.' Full Business Day report

Anti-apartheid activist Glenn Goosen SC had his hands full trying to convince the JSC why, as a white man, he should be appointed as judge in the Eastern Cape, notes another report in Die Burger. He was challenged on the issue by Dumisa Ntsebeza SC who has a controversial history with Goosen dating back to the TRC years. Goosen is one of five candidates for the one vacancy in the province and the only white candidate. Eleven of the 27 judges on the division's Bench are white, notes the report. Goosen told Ntsebeza that he would not have made himself available for the position if he thought his appointment would be a setback for transformation. 'I think I'm a good candidate that can make a considerable contribution to the Bench and my background, history and personality are evidence thereof.' Goosen was the TRC's national director of investigations until he resigned in 1997 following a spat with Ntsebeza. Full report in Die Burger

Leading lawyer Ike Motloung is among the 10 candidates to be interviewed by the JSC this week for five vacancies at the North Gauteng High Court and South Gauteng High Court, notes a City Press report. An attorney since 1991, Motloung, who is representing murder accused musician Molemo 'Jub Jub' Maarohanye, has been an acting judge in the South Gauteng High Court. He was also a member of President Jacob Zuma's legal team during his tribulations with the law. The JSC interviews end on Wednesday. Full City Press report

Why women are not making inroads on the Bench in line with constitutional requirements is taken up in The Sunday Independent, which blames a 'biased acting judge system' for women's lack of progress. It says that figures from the JSC show that of the 225 judges who occupy the Bench from the High Court to the Constitutional Court, 61 are female. The problem, it suggests, appears to start with how few female candidates are short-listed. It notes that those it interviewed say the system used to appoint acting judges and that an institutionalised bias is the root of the dilemma. 'There is an unwritten rule that one must have acted as a judge to be appointed. This means judges often come from the pool of acting judges. Acting judges are appointed by the Judge Presidents of the relevant courts. There are no criteria or requirements in relation to race and/or gender. In practice, this means that women, and black women in particular, don't get to act as judges and thus don't get the experience as judges,' says Jennifer Williams, of the Women's Legal Centre. Department of Justice figures on acting appointments from January 2008 to March 2010 show that acting appointments still mostly go to men. For example, of the 64 acting appointments made in December 2009 only seven were women - about 11%. Full report in The Sunday Independent (subscription needed)