Abstract
The need for transformation of the judiciary in South Africa has been the subject of much public discussion and debate, both in the media and among legal professionals. This article argues that the key test of judicial transformation is not whether it meets some abstract standard established by students of the law, but whether judges and courts enjoy widespread legitimacy in society. It will suggest that this approach can explain why we need a more racially and gender representative judiciary if our justice system is to operate effectively – but will also argue that a concern for racial and gender change alone will not secure the public trust in the courts and the judiciary that transformation should seek to achieve. A broader reform agenda, which understands the intrinsic link between an improved judicial system and winning broad public support for a more representative judiciary, is thus needed.
Highlights
The state of the judiciary – and its transformation – is entirely in the eye of the beholder
It will suggest that this approach can explain why we need a more racially and gender representative judiciary if our justice system is to operate effectively – but will argue that a concern for racial and gender change alone will not secure the public trust in the courts and the judiciary that transformation should seek to achieve
A concern only with racial and gender representivity is likely to ensure the continued erosion of the system's legitimacy in the eyes of whites, and perhaps of other racial minorities too
Summary
The need for transformation of the judiciary in South Africa has been the subject of much public discussion and debate, both in the media and among legal professionals. The state of the judiciary – and its transformation – is entirely in the eye of the beholder At first glance, this seems like one of those platitudes we trot out when we are not sure that we understand where events are headed. This seems like one of those platitudes we trot out when we are not sure that we understand where events are headed In reality, it expresses a key insight about the judiciary often missed in the debate on its future. The position adopted in this article is that racial and gender transformation will not succeed without wider reforms – and that these reforms will not produce a legitimate and effective justice system unless the demographics of the judiciary continue to change
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