Vuka Tshabalala On Trial: The South African Jurisprudence Personified – by Vuyo Mthethwa – A Book Review
We as Black African professionals rarely document our experiences in our various professions. The result is that we miss the opportunity to learn from one another’s achievements and mistakes, so that we can replicate successes and minimise mistakes. It is for this reason that I was excited when I learnt of the recently minted book on Judge President Vuka Tshabalala’s odyssey in the legal profession.
Titled Vuka Tshabalala On Trial: The South African Jurisprudence Personified, there was always going to be a lot going for a book on a person of Judge President Vuka Tshabalala’s stature. Called to the Bar in 1969, he owns the distinction of being the first Black African advocate (or Barrister) in the KwaZulu-Natal province. Being a pioneer comes with its challenges, and young Vuka Tshabalala was always to have to confront a few.
From the book we learn that his entry into the advocates profession was almost derailed by apartheid laws or, more to the point, by the slavish adherence to such unjust prescripts by lawyers no less – specifically the Group Areas Act of 1950 and later 1966 – when the Natal Bar, seeking refuge in untenable provisions of that Act, declined his application to do pupillage. Why? Well, because chambers were located in a “Whites Only” municipal area. That a colleague had agreed to mentor him made no difference.
The Group Areas Act prohibited persons classified by law as one race from living and working in an area demarcated by law for the exclusive use of another race. In order to work in a “Whites Only” area, a member of another racial group required a permit and was subjected to a curfew.
These are some of the barriers that confronted Black professionals and businesspeople seeking to enter various markets and participate in the South African economy. We are still bearing the brunt of the vestiges of these discriminatory laws decades after their ostensible repeal. So endemic are these vestiges even today, that Chief Justice Mogoeng Mogoeng was moved to write as follows in a Competition Law case in Competition Commission of SA v Mediclinic Southern Africa (Pty) Ltd and Another 2022 (4) SA 323 (CC):
“The equalisation and enhancement of opportunities to enter the mainstream economic space, to stay there and operate in an environment that permits the previously excluded, as well as small and medium-sized enterprises, to survive, succeed and compete freely or favourably, must always be allowed to enjoy their preordained and necessary pre-eminence. The legitimisation through legal sophistry or some right-sounding, and yet effectively inhibitive, jurisprudential innovations must be vigilantly guarded against and deliberately flushed out of our justice and economic systems.”
Yet, cynically, as our White colleagues were given a head start by law, measures that have been put in place to help Black people catch up in a race for participation in the national economy that was tilted by law in favour of one race from the very beginning have met with spirited attack from the beneficiaries of that favourable tilt. Even remedial measures, such as regulations promulgated pursuant to the Broad-Based Black Economic Empowerment Act, 2003, are currently under attack in the courts by traditionally large white firms of attorneys who seem to want to dictate the pace of transformation.
We learn from the book that the Natal Bar ’s compromise was to offer young Vuka Tshabalala the option of using his chosen mentor’s chambers when the mentor was not there, so as to spare his mentor’s white clients the embarrassment of having a Black African sitting in on their consultations. Compounded by curfew restrictions, this was an unworkable “solution” for young Vuka Tshabalala. So, living up to his name Vuka (an isiZulu and isiXhosa name which means “Wake up!” in English) he would not be deterred by this barrier to entry into the profession of his choice and opted to start his own practice without doing pupillage, and “learn on the job”.
The author says this turned out to be a blessing in disguise. To make a success of an advocates practice without having done pupillage is a remarkable achievement because the odds are stacked against you in every way imaginable. The reader can find out from the book just how young Vuka Tshabalala managed that feat.
The Bar’s compromise “solution” was unworkable for yet another reason. Pupillage (or apprenticeship) is not about access to chambers. It is principally about access to your mentor’s tutelage and forging professional relationships with instructing attorneys and other advocates in the set of chambers and beyond and learning from their experiences and cases. This was particularly important in 1969 because there were no curated formal classes and the standardised pupillage examinations were introduced only in 1980.
Pupillage is also about access to other tools of the trade like the library, the secretariat and other fellow pupils with whom to forge professional relationships. So, being smuggled into chambers after hours and risking a curfew breach when everyone has retired home was hardly a solution.
We also learn from the book that former Chief Justice Pius Langa did his pupillage under the mentorship of young Vuka Tshabalala. We learn that young Vuka consorted in practice in the same set of chambers (Group 7) with other luminaries of the legal profession including Chief Justice Sandile Ngcobo, Chief Justice Pius Langa, Justice Justice Poswa (his name is Justice), Justice Achmat Jappie and Justice Selby Baqwa, and that Justice Lewis Skweyiya (my uncle) who kept chambers on the sixth floor of Salmon Grove Chambers was a regular visitor to Group 7 and a very close friend of young Vuka Tshabalala.
These glimpses into the circles in which young Vuka Tshabalala moved should give one a sense of the richness of the material from which both Black and white legal practitioners can learn. For me, accounts in the book on the difficulties of practising law at the Bar while Black in South Africa – some of which are still confronting us today – and still emerge successful, are important reminders of our lived reality in this country. This is so not just as a reminder of these barriers for its own sake but, more importantly, for what still needs to be done to level the practice fields so that we can ultimately have fair competition that is not defined by race and gender. We begin to lose all perspective the moment we stop learning from past experiences both of others and of ourselves.
The crude irony of being denied an opportunity to lead for lacking “experience” in what is loosely termed “commercial law”, while “the market” stereotypes Black African advocates generally as good enough for anything but “commercial law” seems completely lost on those who often advance this “experience” argument when Black African advocates and judges are due for elevation. For instance, we learn from the book that Judge Tshabalala was almost a casualty of this “experience” argument when 14 of his white judicial colleagues sought to stop his appointment as Deputy Judge President of the Natal Provincial Division of the High Court (as it then was).
To this day, this “experience” argument still serves as a material barrier to the advancement of many Black African advocates in the legal profession, especially women. For example, you will find a question in the application form for the conferment of Silk (or Senior Counsel) status that asks the candidate how many times he or she has appeared in the Constitutional Court or the Supreme Court of Appeal. Generally, a low number of such appearances will all but guarantee that a candidate’s application will be declined. Yet, opportunities for many Black African male and female junior advocates to prove their worth in these two courts are almost non-existent.
As we now learn from this book, this is not a new phenomenon. The question is why this barrier is still allowed to remain firmly in place, or why efforts are not being made by the organised profession to address the barrier by putting pressure on the largest consumer of litigation services – the State – to engage more Black African junior advocates – especially women – in litigation at this level. It is by the publication of books like this that we can keep steadily chipping away at the barrier walls put up by the profession’s doublespeak.
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Written from the perspective of one of his daughters, Vuyo Mthethwa, the book on Judge President Vuka Tshabalala’s odyssey in the legal profession – while insightfully and poignantly titled On Trial – may in my view be something of a lost opportunity.
I say so because, in my view, the story of one who has been put “On Trial” in one’s professional journey is often more effectively and authentically told by him or she who has travelled that path. Third person narratives of another’s personal experience may tend to denude the experience of its authenticity, leaving the reader wondering what the subject’s own raw feelings and thoughts are on the events narrated on his behalf by another who did not experience them.
I make allowance for the possibility that my criticism in this regard may be a tad unfair – even harsh – because with the passage of time memories do fade. The subject of this book should, by my calculation, be 88 years old this year. Time is often our foe on projects like this. I am informed that work on the book could have commenced as long ago as 2015 but for various reasons this did not happen.
Also, biographies (authorised or not) are a perfectly legitimate way of having one’s story told in the third person by another. But biographies – at least in my experience as a reader – often serve one of two purposes: either to extol only the virtues of the subject, suppressing all vices (as in a hagiography) or to expose the darker side (real, perceived or manufactured) of the subject.
Examples of this form of storytelling are legion: Mark Gevisser’s A Dream Deferred (2007) on President Thabo Mbeki, Adriaaan Basson’s Zuma Exposed (2012) on President Zuma and Professor Richard Calland’s The Zuma Years (2013) also on President Zuma can probably be categorised as biographical works intended as what Americans would colloquially term “Takedowns”. Contrastingly, Reverend Frank Chikane’s Eight Days in September (2012) on President Thabo Mbeki, Benjamin Pogrund’s How Can Man Die Better (1990) on Robert Sobukwe, and Bonga Mfuphi’s Defying the Gallows (2024) on Justice Mandlakayise John Hlophe would probably rank among hagiographies.
Neither of these biographical categories are fit for the telling of a story as important as that of Justice Vuka Tshabalala. Written from the perspective of a daughter – as the author herself tells us in the very first chapter under the rubric “Through the Eyes of a Daughter” – it would be unreasonable (perhaps even naïve) to expect a brutally objective account of a beloved father’s professional journey. The book is written with the admiration, love, pride, appreciation, reverence and respect of a doting daughter. That is admirable and to be expected.
But is the legacy of a towering and pioneering legal giant, who has flattened all racial barriers and confounded racial stereotypes in a profession that has in its DNA precisely those racial stereotypes, to be told only from the perspective of a loving daughter?
While there is room for a book told from a daughter’s perspective – and the author does commendably in telling the story of a legal giant that will have evolved over more than five decades – the story of Vuka Tshabalala’s journey as a Barrister and Judge deserves telling also from various other perspectives, including his own (if feasible). For this reason, a second telling in a second book, and third, and fourth, and more should be considered in my view. British Prime Minister Margaret Thatcher has told her story more than once: first in a book titled The Downing Street Years (1993) and later in another titled The Path to Power (1995).
British Prime Minister Tony Blair, too, has had his story told more than once. A sanitised version of his journey was told in his autobiography titled A Journey (2010). This was followed some six years later by one of my favourite biographers, Tom Bower, in a less gilded account titled Broken Vows (2016).
In my view, the story of Judge President Vuka Tshabalala – in addition to the sterling and admirable work produced by his beloved daughter from a daughter’s perspective – deserves a first-hand account (even with the help of his contemporaries and proteges to jog his memory if needs be) of what he was subjected to by his own colleagues both at the Bar (when in 1969 he was, ultimately and in truth by reason of his race alone, denied the opportunity to do pupillage and keep chambers alongside other advocates) and on the Bench (when in 1997/8 some 14 white judges petitioned the Judicial Service Commission to stop his appointment as deputy Judge President on the ground that he would not enjoy the support and command the respect of other judges – virtually all white – again his race being the under-current).
Told in his own words, I cannot help but imagine that the authenticity of the pain he must have felt, the feeling of humiliation and disappointment he must have endured at the hands of his own colleagues, and lessons for others in those personal experiences will be palpable and deeply felt, and more effectively drive home the message “Never Again”.
As things are, the humiliation that Justice Vuka Tshabalala must have endured at the hands of his peers in 1997/8 was to be felt, again, by another Black African candidate for high judicial office some 13 years later in 2011. This was when Justice Mogoeng Mogoeng was subjected to a most unfortunate interrogation when nominated by then President of the country for the Chief Justice berth, and his nomination strongly opposed by some judges, some NGOs and some lawyers in private practice. Again, seniority and lack of experience featured among other charges – exactly the same arguments that came up in opposition to Judge Vuka Tshabalala’s nomination for the position of Deputy Judge President 13 years earlier. The lesson that the legal profession should have learned in 1998 had not been learnt.
That same lesson had not been learnt also in 1996/7 when – as Marumo Moerane SC reminds us in his testimonial to Judge President Vuka Tshabalala – some white judges of the Supreme Court of Appeal had petitioned the Judicial Service Commission to stop the appointment of Justice Ismail Mahomed (a Black Judge) as the first post-apartheid Chief Justice of South Africa in preference for one of their own in Judge Hennie van Heerden.
And so, history repeated itself and is likely to recur. This is the risk we take by not sharing our experiences in print so that others can better learn from them.
This is where the opportunity may have been lost in the writing of this book. Perhaps it is not lost but deferred. Justice Vuka Tshabalala could have taken us along on his painful journey, in his own words, sharing his own personal experiences complete with the emotional nuances that are resident only in him. He could presumably still do so with the assistance of his contemporaries and proteges if memory should be fuzzy on some aspects of his journey. This research work already done by his daughter for the production of this book could serve as a launch pad. From that first-hand account younger and aspiring judges would learn directly from the source of these painful experiences and perhaps make a socio-professional compact with one another that similar experiences are never to be repeated.
But all is not lost. More books can still be written on the odyssey of this pioneering legal giant – most preferably by his own hand or by a biographer of repute. No one can tell that story better than the man himself. There are numerous – but few – examples of retired Justices telling their own stories in a way that gives the rest of us pause for thought and learning. These include Justice Edwin Cameron’s Justice: A Personal Account (2014); Justice Cecil Margo’s Final Postponement: Reminiscences of a Crowded Life (1998); and Justice Dikgang Moseneke’s two memoirs, My Own Liberator: A Memoir (2016) and All Rise: A Judicial Memoir (2020). Brushes With The Law (1995) by Justice Marius Diemont is another. In my view, Justice Vuka Tshabalala’s story deserves telling in similar fashion, a direct engagement with the reader.
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To borrow from culinary parlance, the book is tastefully plated over five courses – presented as Part One to Part Five over just under 220 pages. It is more a tasting menu than a feast – all the more pity given the larger-than-life personality of its subject.
Opening with free verse from a granddaughter, followed by a foreword from a Justice of the Constitutional Court who has worked with Justice Tshabalala, and closing off with an entire chapter of testimonials by proteges (who are still in practice as senior counsel) and judicial colleagues, the work offers a broad swathe of perspectives about its subject.
Conspicuously absent, however, is a word directly from the man himself about the defining moments of his professional journey – apart from a few quotes dotted here and there, including excerpts from some of his judgments that the author considers seminal. Even the part of the book said to be “In His Own Voice” covers all of three pages and comprises short extra curial quotes from the Judge.
In short, the book is a story told by a daughter about her father. Over five short chapters it covers topics on
- “The Awaken[ing]” of the Judge which covers his entry into the advocates profession and introduces the reader to Vuka the man, the father, the husband, the granddad, the lawyer for the downtrodden and his tribulations while on circuit as a judge
- the Judge as a “Trailblazer” which introduces the reader to brief testimonials by some of the Judge’s proteges and judicial colleagues and gives brief accounts of his prowess in court as a practising advocate
- the Judge “On Trial” which covers his nomination for Deputy Judge Presidency of the Natal Provincial Division (as it used to be called) and the petition of 14 white judges against his appointment
- “Judging the Bench” covering his administration style as Judge President following the resignation of Judge President Howard, and some of his landmark judgments, and
- “Legal Eagles Speak” which comprises testimonials of colleagues and proteges.
A word on Judge Vuka Tshabalala’s Judge Presidency and the author’s analysis of some of his more notable judgments is necessary. We learn from the book that the white judges who had petitioned the Judicial Service Commission in 1997/8 to stop his elevation to Deputy Judge Presidency subsequently came around to respecting him for his ability to lead. This was inevitable for a man whose leadership style has been described as of “genial disposition”, “congenial”, “friendly by nature”, “approachable”, “cheerful”, “gregarious”, “sociable”, “generally having joie de vivre“, “kind and considerate”, “welcoming”, “affable”, and “a grounded, kind and friendly human being in a world that is otherwise hostile and exclusivist”.
As Judge President he was instrumental in the exponential increase of the number of Black and women Judges in the country. We learn that in just 22 years, the complement of Black judges increased from 1.8% in 1994 to 64% in 2016, and that the women complement rose from 1.2% to 35% over the same period. Judge President Vuka Tshabalala played a major role in that increase. Judge President of the KwaZulu Natal High Court, Thoba Poyo-Dlwati, testifies that she is “a first-hand beneficiary of his empowerment initiatives for women”.
The author identifies three judgments of Judge President Vuka Tshabalala as landmark judgments. One deals with the language of record in the courts, another deals with land occupation and a third deals with intimate partner violence. Her grasp of legal principles involved in each of these made me wonder whether she is not a closet senior advocate. Lest I spoil the reader’s appetite, I think it best not to disclose too much on the analysis.
I was particularly intrigued by the analysis on the court language of record issue. With 11 official languages (now 12 with the inclusion of sign language) all enjoying the same status in terms of the Constitution, the question that arises is why only one of them (English) is preferred as the language of record in our courts. The author helps the reader navigate the reasoning in the judgment without having to read the judgment itself. Of course, a dyed in wool lawyer will want to read the judgment – as I have – and form his or her own view on the outcome and reasoning.
Then there is the Nicholson judgment in Zuma v National Director of Public Prosecutions 2009 (1) BCLR 62 (N), described by the author as “demonstrat[ing] the conundrum between politics and the independence of the judiciary”. Indeed. The author explains the process that culminated in the case being allocated to Judge Chris Nicholson.
This was the case of one Jacob Zuma who sought the setting aside of the NDPP’s decision to prosecute him – for, among other things, fraud, racketeering, corruption and money laundering – because he had not been afforded an opportunity to make representations before the decision to prosecute (as required by the Constitution and the National Prosecuting Authority Act) following the NDPP changing his mind from not prosecuting to prosecuting him. Judge Nicholson obliged, finding that President Zuma was entitled to an opportunity to make representations before the decision to prosecute him was taken after a previous decision was not to prosecute. He also found that President Zuma may have been “prosecuted for what appears to be some ulterior political motive”.
In a judgment reported as NDPP v Zuma 2009 (2) SA 277 (SCA), following an expedited hearing on appeal (just 2 months after the Nicholson judgment) and a swift judgment (just 2 months after argument on appeal) Judge Nicholson’s judgment was stridently criticised (and reversed) by the Supreme Court of Appeal for, among other things, “chang[ing] the rules of the game, t[aking] his eyes off the ball and red-card[ing] not only players but also spectators”. He was also criticised for allegedly bringing his own political preferences or views to bear on his judgment.
The SCA said the motive for prosecution is irrelevant; what matters is whether there is a prima facie case which, if proven in criminal court, would lead to a conviction. This seems to me hard to reconcile with Constitutional Court authority in the Certification judgment which says any executive interference with prosecutorial independence would be subject to constitutional control by the Courts (In Re Certification of the Constitution of the RSA 1996 (4) SA 744 at para [146]). So, in light of this Concourt judgment, it is hard to understand how motive for a prosecution can be said to be irrelevant and immune to judicial review.
The SCA judgment is in my view remarkable for its apolitical facade. The proposition that a judge suddenly loses all political persuasion and conviction just by donning a robe and sitting on the elevated Bench is, in my view, an extraordinary misunderstanding of human nature. One wonders if judges themselves believe it possible. Perhaps the judgment came a decade too early. The Court might have done well to read a paper by Justice Madlanga of the Constitutional Court on Judging According to Personal Attributes.
The author does not express a view on the merits of the Nicholson judgment. Judge Nicholson himself acknowledges (in the testimonials chapter of the book) that his judgment was reversed on appeal. He adds that he is “satisfied that the way I conducted the case was in the interests of justice”. He says a little more, but it is best to leave the detail for the book to unfurl.
Like any biographical work worthy of that characterisation, there are photographs that tell the story of the subject. Surprisingly, a copy of the single most controversial aspect of Judge President Tshabalala’s ascendency up the judicial totem pole is not included among the many photographs – the petition by 14 white Judges of the Natal Provincial Division to the Judicial Service Commission against his appointment as Deputy Judge President.
For those of us who know of the petition only through media reports, this was in my view an opportunity lost to expose in the book for the reader to see the precise reasons advanced by the 14 judges for opposing the elevation of Justice Tshabalala to Deputy Judge Presidency. One should not have to troll the ether for a document of such centrality to the rise of one of South Africa’s foremost jurists. Hopefully in another follow-up book, the petition will be included.
I am pleased by the publication of this book on the career experiences of one of the leading lights in the South African advocates profession and on the Bench. It has given us a glimpse of his professional journey. But a glimpse is in my view a lot less than a pioneering legal giant like this deserves. Hopefully, a fitting tome will follow – soon.
It is also my hope that the publication of this book will be an incentive for other retired Black African Judges to tell their story in a book so that we can learn from their experiences and mistakes and celebrate and replicate their triumphs. As an unsubtle nudge and a wink – without being exhaustive – I have in mind books on Judges like Chief Justice Mogoeng Mogoeng, Chief Justice Sandile Ngcobo, Chief Justice Mnyamezeli Zondo, Justice Chris Jafta, Justice Bess Nkabinde, Justice Sisi Khampempe, Justice Mbuyiseli Madlanga (whose retirement is imminent), Justice Justice Poswa, and many others. It is through the telling, in written word, of their triumphs in the legal profession against all odds that we, as younger Black African lawyers, can unshackle ourselves from the chains of inferiority imposed upon us by the amorphous market that is the South African professional legal landscape.
The End
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