High Court of North Gauteng by Brandon Eichhorn, 15 March 2011

The group was given the opportunity to visit the High Court of North Gauteng and visit with sitting Judge Pretorius.  When we arrived at the court we had no idea that we were going to be blessed with an exclusive opportunity that most visitors do not get.  After a brief introduction we were led by her Registrar (clerk) down to the lower sections of the Court and to visit the old holding cell for the Court.  This cell is special because it once held Nelson Mandela and seven of his brethren as they awaited trial in 1964. The clerk, using a old fashioned key, unlocked the door and let us in the room to take a look at what was inside.  The cell was a very basic holding cell besides the writing on the wall.  We got to see the very first draft of the Bill of Rights and Preamble to the Constitution written on the cell wall. This experience was made even more exceptional when we learned that Judge Pretorius herself had never been in that room.

Following this we returned upstairs to the actual court in which Mandela and the others were sentenced to life in prison at Robben Island.  Here we sat down and had a very enlightening conversation with Judge Pretorius. The discussion really focused on the idea of change.  Judge Pretorius strongly believes that the populace has embraced the values and ideals of the new Constitution and that the South African concept of “Ubuntu” (humility or togetherness) has spread to every citizen of all races.  Judge Pretorius discussed the general makeup of the court system as evidence of this change and pointed out the racial and gender composition of the current sitting high court judges.  Currently there are 72 judges 56 of which are of a non-white race and 14 of which are women.  This was compared to 1993 when 51 of the total 52 judges were white with one Indian member.  Some of those 51 white judges who were appointed under the Apartheid regime still sit on the bench currently.  According to Judge Pretorius these individuals have been able to adapt to the new government and are not burdened by the past.  This comment rose a bit of alarm. While it is very plausible that an individual is capable of such a drastic change, it is hard not to believe that when a judge or attorney is trained in one system of law and then proceeds to practice and adjudicate under that system for a significant period of time, it seems unlikely that he could turn around and learn an entirely new system and be able to make fair judgments without any influence from his original legal training.

Judge Pretorius made some additional comments that the group found interesting regarding her personal view on how to make fair judgments in South Africa. She stated that one must look at the broad picture as well as any historical implications when making a ruling. In the American system of law this would be a very liberal approach to legal analysis which some might find objectionable.  But in South Africa this may not be just a personal legal approach but rather a necessary means of resolving conflict in this particular country.  South Africa suffers from a past that influences every decision in every aspect of a South African’s daily life.  Therefore when a judge seeks to resolve a legal dispute he or she must factor in those same influences that affected the decision that is at issue in court.

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