Minority applicants who dare apply for appointment have, under the Zuma presidency, been subjected to a modern variant of ‘trial by drowning’. They are asked by the racial psychopaths on the JSC if they support the ideal of ‘demographic representivity.’ If they say no, they are excluded from consideration for having opposed ‘transformation’. If they say ‘yes’ they self-exclude themselves, as their appointment would quite obviously obstruct the attainment of this goal. So, Marshall is certainly correct to claim that the ANC has attained its racial goals in the judiciary speedily and on an impressive scale. Whether this is “great cause for pride and celebration” is more open to question. It represents, for one thing, the triumph of extreme racism. One of the founding texts of modern German anti-Semitism – Adolf Stoecker’s 1879 pamphlet “What we Demand of Modern Jewry” – called for the “limitation of appointments of Jewish judges in proportion to the size of the population.” Should South Africa really be proud that, a hundred and thirty years later, the ANC has adopted the same limitation, when it comes to the appointment of white (including Jewish) judges in South Africa? It is also untrue to pretend, as Marshall does, that this has done no harm to the quality of justice in South Africa. As a matter of simple arithmetic: excluding three quarters of the legal profession, including the great majority of your top advocates, from appointment to the bench can hardly do the institution any good.
Such over the top criticism, it seems to me, is singularly unhelpful as it completely denies the political imperative of transforming our judiciary to make it more legitimate and to rectify the past racial discrimination in the appointment of judges. By equating Nazi Germany with present day South Africa, Myburgh ignores three hundred years of racial oppression in South Africa and fails to see that as a matter of ethics and of law there is a need for the racial and gender transformation of the judiciary. Surely a more racial and gender diverse judiciary is one of the (many) requirements for the establishment of a more legitimate legal system. In fact, he also ignores section 174(2) of the Constitution which states that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. To call the JSC’s preference for the appointment of suitably qualified black men and women as judges a “triumph of extreme racism” also directly contradicts the views expressed by the Constitutional Court in Minister of Finance v Van Heerden which stated that our Constitution’s equality guarantee does not only allow for different treatment on the basis of race to correct past injustice, but sometimes demand it.