For a long time in our history 99% of our judges were appointed from the ranks of senior advocates. Advocates are not allowed to practice in partnership with a result that they acquire some particularities of their own after a few years of practice. One of these is their distrust of one another as competitors. This largely results in a rigid application of the law so as not to be caught out on technicalities. Ultimately it may have been the cause of the formalistic judgements that we came to expect from the Appellate Division before it was transformed into the Supreme Court of Appeal.

The South African Bench has attracted unwanted adverse publicity in recent times as a consequence of the antics and adventures of a small minority of its members. Wine, women, nocturnal escapades and judicial misadventures to titillate the tabloids seem to be the order of the day. Unfortunately, the antics of these few, impact negatively on the esteem in which the judiciary is held and this detracts from its effectiveness. It is also so that the tendency to appoint inexperienced judges has led to some miscarriages of justice such as the recent gagging of the M & G newspaper at the instance of the SABC’s legal adviser. These mishaps can be corrected on appeal if litigants have the time, energy and perseverance to do so. Last year Judge Cachalia, now gracing the Supreme Court of Appeal, publicly warned that these inept transformation chickens were coming home to roost.

My submission is that there aren't enough African Black female Judges…….true, but there are plenty of competent Black females for those posts but we aren’t been recognized nor considered. It’s a battle to even get recognition for Regional Court appointments despite our qualifications and experience. Demographics appear to play a considerable role in appointments. Pity.

The first constitutional requirement for the appointment of a judicial officer is appropriate qualification, which includes academic qualification and experience appropriate to the task. Next is woman or man who is a fit and proper person and next is South African Citizenship. Then there comes: “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. The concept of ‘affirmative action’, according to the Constitution, is not mandated and finds no application in the process of judicial appointments.

My view is that the more important issues to be addressed are transparency, culture, power, the right to question and freedom of expression.

It has nothing to do with race, but it is a fact that inexperienced judges are forced onto the bench in the name of Affirmative Action. By this I don’t mean black judges as well, but I personally know a judge (not black) who was placed on the bench with very little experience and from her track record I could not believe my eyes.

In my view race has nothing to do with it. The fundamental reason for the different perspectives is that Van den Berg is an attorney and Ngalwana is an advocate.

Its is sad that now and again in South Africa we must be drawn into the debate pregnant with racial profiling and innuendos. I am not in the legal fraternity, but I require no legal qualification either to understand the undertones of Mr Van Den Berg's comments. The comments clearly are not meant to make any positive contribution in building the image of the judiciary, nor do they harmonise the deeply polarised relations within the fraternity.

The issue at hand has nothing whatsoever to do with race. The general populace is suffering severely from inexperienced lawyers on the Bench. Nothing more and nothing less should be read into this fact. Litigants from all sectors of the populace are at the receiving end.

Being a judge must be a daunting task if one is serious about the job. I have been a litigation attorney for many years and I have learnt a bit about the business in that time. Nevertheless, the thought of being confronted by two senior counsel arguing a difficult point terrifies me. Judging involves a great deal of work, reading the papers, looking up the law in preparation for hearing the matter, actually listening to the witnesses and counsel and then properly applying one's mind and giving a reasoned judgement based on the facts and the law. And all this whilst knowing that the list of cases calling for your attention is growing all the time. Imagine dealing with eight opposed motions on a day as our local Judges. This is not for sissies and it requires a particular acumen coupled with vast experience and knowledge of the law, energy and dedication. These qualities cannot be taken off the shelf and there is only one way to acquire them; by application of the trade over many years.