By Magardie, Khadija
For the first time in its history, South Africa's Supreme Court of Appeal (SCA), which together with the Constitutional Court is the country's apex court, has a permanently appointed black judge. The body tasked with appointing judges recently recommended the appointment of veteran human rights lawyer and SCA acting judge, Lex Mpati, to the Bench.
Mpati, who rose to prominence whilst working for the Eastern Cape Province branch of the Legal Resources Centre -- a body that engages in litigation on behalf of indigent, mainly black clients, brings to the court a wealth of experience in human rights law, and insiders say his appointment signals a new commitment of the judiciary towards transformation.
Despite the so-called "negotiated revolution" in 1994, which brought an end to apartheid and ushered in a new democratic government under the ANC -- the judiciary has remained relatively unscathed. Although there has been a massive drive for affirmative action, namely the appointment of blacks, and women, to positions from which they were traditionally barred, the country's judiciary, both in the lower and upper courts, has, until fairly recently, remained the same.
The Appeal Court has come in for particularly harsh criticism, with the ANC blasting it on several occasions for "reflecting imbedded racism".
The ANC has, on several public occasions, stated that the Appeal Court was not only stacked with apartheid-era "dinosaurs", but that its approach to the law itself had been conservative, leading to perceptions in the community that the court was biased, and that poor, rural blacks, in particular, could not expect a fair hearing.
A glance at the names and biographies of some of the 16 white male judges in the court would make the tirades against it unsurprising.
Judge Joos Hefer was a champion of pro-Pretoria legislation during the late 1980s. He was also involved in a bitter, public spat in the judiciary in 1996 when he called on Chief Justice Ismail Mahomed (now deceased) to withdraw from the race to head the court. Mahomed, who was of Indian descent, went on to head the SCA until his death earlier last year of cancer.
During Hefer's tenure as chief justice in the former "bantustan' (the so-called independent homelands set up by the apartheid state for members of the Xhosa ethnic group) of the Transkei, he ruled on numerous cases dealing with the notorious state of emergency laws, which gave unchecked powers to the state security apparatus to "maintain law and order".
Another, Judge Louis Harms, headed a lack-luster commission of inquiry into apartheid security force "death squads" which abducted, tortured and murdered opponents in 1990. The commission proved to be a white elephant, with the true nature of the hit squad activities only emerging during the Truth and Reconciliation Commission (TRC) hearings.
During the interviewing process, Mpati admitted he had initial reservations about joining the Bench, because he felt he had insufficient experience.
A judge of note, who has, in his time as an acting SCA judge, handed down several important, if not controversial judgements, particularly those relating to African Customary Law, Mpati's working life includes stints as a petrol attendant, furniture salesman, and a hotel barman in his native Grahamstown, in the Eastern Cape Province. …