Durban Supreme Court, Credit: Margaret E Parker, Wikicommons

Racial inequality still looms large within South Africa's judiciary, despite the nation having emerged from apartheid as a democracy committed to transformation, lawyers and campaigners have said.

Lawyers say that black people still remain gravely underrepresented within the judiciary due to a lack of transformation in the South African justice system, where inequalities persist despite 25 years of democratic rule by a black majority-elected government.

"Progress has been made, but the judiciary needs to be more representative," said Des Williams, head of arbitration at Johannesburg based law firm Werksmans Attorneys.

One of the latest inequality issues to receive scrutiny is the lack of black judges and acting judges – especially females.

"For example, in the Western Cape, the majority of acting judges are white males," Mashudu Kutama, president of the Black Lawyers Association (BLA) told Law.com International.

When asked why that should be, considering the Judicial Services Commission, which appoints judges, consists of a panel of majority black judges, he said, "I do not know the answer to that."

Kutama has written to the Minister of Justice and Correctional Services requesting that the selection of acting judges is aligned with the demographics of the country.

In his letter, which he shared with Law.com, he said: "The BLA finds the current state of affairs abhorrent and unacceptable, more so that heads of these courts are themselves beneficiaries of transformation."

He says there are hundreds, if not thousands, of qualified and able black African men and women from whose ranks acting judges may be appointed. These include magistrates, advocates, attorneys, legal academics and scholars.

"Without a complete transformation of the judiciary, our dream of integrating the African laws and customs into the mainstream jurisprudence will forever remain a smoke screen," the letter continues.

Kutama ends the letter by saying that the BLA "will embark on a very radical action to make sure this matter is once and for all resolved."

In another matter involving discrimination, a judgment delivered last week by the Western Cape High Court dismissed the application by the Cape Bar, seeking to invalidate regulations in the Legal Practice Act.

The Bar claimed that the regulations contradict the constitutional right to equality, and unfairly discriminate against black females via the imposition of inflexible quotas, according to the judgment document.

It asserted that advocate Ncumisa Mayosi had been denied a seat on the provincial Legal Practice Council (LPC) based on her race and gender.

Mayosi had received the third-highest number of votes and was not elected among the four to serve on the council because according to the equity ratio, the vacancy was for a black male advocate.

In his concluding remarks, the judge said: "It is perhaps fitting for all to be reminded that the election of black women to the governing structures of the profession is not in and of itself sufficient to fulfil the transformation objective of the legal profession."

Another recent racial discrimination matter arose following the shock announcement last month by the Pretoria Society of Advocates that it was filing for liquidation, according to a letter seen by Law.com International.

The 160-year-old association cited bankruptcy and the COVID-19 related national lockdown, compounded by unpaid members fees.

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