SPEAKER_01 0:00

Judge Dennis Davis, welcome to Why Did I Become a Doctor? Thank you. Yeah, I can't believe we're actually interviewing a judge. Yeah, we need to change our name on the show. Did you ever expect to be interviewing a judge? I mean, I thought it might be the other way around, but in a professional capacity, yeah, but not uh Judge Davis, before we even get into the why did I become part, there's a burning question I've got. It's unrelated, but seeing as we've got a judge, let me make the most of it. Is advocate a title?

SPEAKER_00 0:26

Advocate. You shouldn't call yourself advocate in South Africa. Only the Afrikaans advocates call themselves advocat. We look at most people just call themselves Mr.

SPEAKER_01 0:35

Yeah, Mr. or Miss, right? Yeah. I didn't I had no idea that this was such a raging debate in the legal returning. Generally speaking, people don't call themselves advocates.

SPEAKER_00 0:43

Well now everybody does, right? That's the common thing. Well that's the point you see. If you in the old days, if you got an LOB degree and you didn't even have to do pupilate, and you literally got admitted, which you were entitled to, you could call yourself advocate. But in fact you weren't really a practicing advocate. We but increasingly follow the English tradition where you know they they're not advocates, they're barristers, but the form is there.

SPEAKER_01 1:06

Yeah. Because you know how it came to my attention. So the first brief that I ever put together for an for an advocate was for Dennis Fine S.C. My principal was Donald Dinney. I didn't tell you this, but I became an attorney after becoming a dentist. So I put this brief together and it was a complicated insurance matter, and uh the last thing I was worried about is the labeling of the file, right? So I go with to Donald Dinney with my my files and he looks at the label. It doesn't even look at anything inside there. He says, change the label. It shouldn't say advocate Dennis Fine S.C. So I had to change it to Mr. Dennis Fine S. C.

SPEAKER_00 1:39

And that's when I've heard that this is this whole debate that's Yeah, generally speaking, in the Afrikan, I mean the foster, it called yourself advocate foster. Yeah. Whether he practice or not, I haven't sliced idea, but practice, it's really not done. And and judge, is that a Well, yes, people call because it's a sort of lifetime title.

SPEAKER_02 1:59

Right.

SPEAKER_00 2:00

Um and therefore you are called judge, yes. Yeah. Yeah.

SPEAKER_01 2:03

It's different. So growing up as a little boy, Judge Davis, did you always think out one day I want to I want to become a judge? You were mad.

SPEAKER_00 2:11

I grew up in the apartheid system. Right. The idea that anybody like myself would become a judge was completely ridiculous. That was never that was never on the agenda. In fact, it wasn't on the agenda at all until Ismail Mohammed, who is the Chief Justice of my close friend, started pestering me to take an appointment on the bench. What do you mean anybody like yourself? I mean you're a white guy? White progressives were not going to get invitations onto the bench.

SPEAKER_01 2:36

Progressive as in you know, being an advocate for No, well I mean like if you were a member of the United Democratic Front, you were not going to Okay.

SPEAKER_00 2:44

You were not if you were sympathetic to the ANC in the 1980s, you were not, or the trade union movement, you ain't you won't you know there was no and by the way, you didn't want the job. You know, I mean there were some very progressive liberal judges, I accept that. But by and large, no. I mean they they didn't want people like us. They were banning people like us, they weren't exactly appointing us to the bench. No. Okay, so forget the judge thing, but just a lawyer in general, do you come from a Well I I I I finished my law degree and when you finished uh I finished in 1975, when you finished then, you really had two or three choices. You could be an attorney, um, you could go to the bar, and there was very little else, right, at that stage. I didn't want to be an attorney. To go to the bar, I I came from a very working-class white family. My father was a motor mechanic. They couldn't afford to put me through the first couple of years of the bar. So it was really a non-existent option. So then there were only a couple. Um, one was at that stage the legal resources center had just begun. So there were very f there were no public interest law firms if you were a progressive um uh uh uh person uh to go to. The union movement took a couple, but very few. Many of us did do a lot of work for the independent trade union movement, and then the only other job was academic. So that's where I landed up. So your old man's a motor mechanic. Yes. What makes you think of doing law? My mother was a secretary in the law firm. Right. And I think in many ways I used to, you know, um, I used to go and have my lunch when I was a child uh at her from school to where she worked, and I probably, you know, liked the idea of law.

SPEAKER_01 4:32

Where about is this Joburg or Kepton? No, I was a Captain. You're a Captonian. Yeah. I mean, you you're I didn't I also didn't tell you this, but your son and I worked together. Oh, really? Yes, we were on Team Wisagi.

SPEAKER_00 4:43

Okay.

SPEAKER_01 4:43

So that's why I thought maybe there's a long line of lawyers here.

SPEAKER_00 4:45

No, there's no long line of lawyers. I was a first-generation university student. Can you fix the car? No. My father made sure. It's an interesting question. I used to say, Can't I come and work in your garage during the vacations? He said, I don't want you anywhere near a motor car. You're not doing what I'm doing. Forget it. There was a real sense about people like that that they wanted their children. Well, I mean, sometimes Jewish like myself, but I mean, I think it's most communities, they want their children to do better than they. And he didn't want anywhere near a motor car. But you let your son become a lawyer. I didn't want him to. He was in philosophy. Yeah. And he did a master's in at at King's College and was going off to do his doctorate at Oxford, and then decided that you can't make money as a philosopher. So he ended up by going to the uh uh Edward Nathan. Yeah.

SPEAKER_01 5:33

But it's interesting that you said you didn't want him to. My old my old man's an attorney for 30 plus years also, runs his own firm in Tongat, KZN.

SPEAKER_00 5:40

And when I was in Standard Nine Matric, I said to him, Dad, I want to do law, and he said to me, you know I ended up by having two children doing law against all my best wishes. Why? Why don't lawyers want their kids to become lawyers? I don't know. I mean, it seemed to be such an uncreated position. Yeah, uh uh thing. I just didn't I didn't think that that's my daughter I thought was much more artistically client, and that's what I thought we should have done. Again, I think she felt that was going to be rather difficult. Law is actually, when you think it through, I know not everybody gets um articles, etc., now, but it's a pretty much safer uh profession than many others. And I think often, you know, cautious people tend to go that route.

SPEAKER_01 6:21

Yeah. Or the ones that can't get into more than medicine, you think?

SPEAKER_00 6:26

Well, I I I wanted to be a psychiatrist. Me too. And uh one or two weeks of medical school enough to persuade me that well didn't want to keep catching up frogs. So that was into medical school. Yeah. Well, I was yes, for about a week or two. Well, how did that happen? You can't just brush over that judge.

SPEAKER_01 6:47

Uh I did. How did that happen?

SPEAKER_00 6:48

I just think you'll never ever be a doctor. So eventually and psychiatry was actually what I really wanted to be, which is why at some point in my life I turned to criminology, because there was a link between lawn and and psychiatry in that particular direction. So does the way people think mi excite you? Like you let it make you you Yes, I mean it does. I I was particularly interested in that. Um and I probably got but yeah, I I was interested uh in in that particularly. Um, and in fact, one of the best courses I ever did was when I was at Cambridge and when I was doing my master's in criminology, we had a whole term of forensic psychiatry with a psychiatric registration at uh at Foolbourne Hospital in Cambridge, and it was a fantastic course. So, yeah, I was always interested in that. So you applied for medicine then? Yeah. Why? And you got in. Yeah, well, I wouldn't have in those days anybody got in. I mean, come on, you know, it's not like today.

SPEAKER_01 7:44

Yeah. But you must have been good at school, surely.

SPEAKER_00 7:47

No, I wasn't very good at school. I was okay.

SPEAKER_01 7:48

And did you did your old man say you must do law or medicine?

SPEAKER_00 7:51

My father was wonderful, as was my mother. They never put any demands on me. They really let me do what I wanted to.

SPEAKER_01 7:58

But you mentioned this thing about Jewish community. I mean, even in the Indian community, there's like this unspoken rule almost that you must become a professional.

SPEAKER_00 8:05

Yes. No, no, I think they would have very much he certainly didn't want me in my country. And I'm quite sure they would have wanted to they wanted me to go to university. But precisely what I was supposed to do at university was very much up to me. So this is brilliant. You almost became a adopted.

SPEAKER_01 8:20

Yeah. You uh where did you start? Almost. What did you say? Two weeks. Two years. I mean, you if you just carried on.

SPEAKER_00 8:25

Yeah, well, maybe. At the end of the day, it didn't really kind of at UCT.

SPEAKER_01 8:29

Yeah, yeah. Fascinating. Doesn't do people know this about you? Some written about you. That's cool. Okay, so two weeks into med school, you you decide yes. What were you like growing up as a kid? Did you play sport? Yes, I did.

SPEAKER_00 8:42

I mean, like everybody else says. I mean, you know, totally incompetent cricketer and rugby player, but basically, yes, loved it. No aspirations to be pro-Tiacal. I wasn't good enough. Yes, of course, like every other child who plays cricket, that's exactly what you want to be. Um, yeah, I mean, but uh, you know, my love of both sort of cricket, uh rugby and and and and soccer was sort of engendered as a young kid, yeah. And were you a bookworm? Yes, I yes, to some extent, yeah.

SPEAKER_01 9:13

Okay.

SPEAKER_00 9:13

It's probably less than I should be, because I spend so much bloody time watching football on television.

SPEAKER_01 9:18

Who do you support? Arsenal? Manchester United. Are you insane? Well, you're since me too. Yeah.

SPEAKER_00 9:22

I'm going to I've suffered for the last decade.

SPEAKER_01 9:24

We're going with my dad in a couple of weeks, we're going to watch them. But it's I haven't been to watch a few times. Every time they've lost. Okay. So good luck to you. United are playing Brentford, so we're at home.

SPEAKER_00 9:37

You may be you may be okay. Yes.

SPEAKER_01 9:39

So two weeks once you ditched medicine, how does how do your folks react?

SPEAKER_00 9:44

My folks didn't, as I said, they didn't mind what I did. Right. And um But what about the funding? I mean, they should Well, I was lucky in a sense. I had somebody from them, and the Jewish community were pretty good about that. So, you know, for kids like myself who were on the wrong uh side of the tracks in terms of you know, class, not race, um, you know, they they pitched in.

SPEAKER_02 10:09

Okay.

SPEAKER_01 10:10

But can you unpack that thing about being on the wrong side of the tracks? And you you know, my perception is that if you're white, you're privileged. Of course there's privileged.

SPEAKER_00 10:17

Yeah. I mean, let's be quite honest, all whites were privileged. There's no question about that. And if you were white, you had a real shot at anything. And if, frankly, if you were black, you had very little. Um but there were but class does play a significant role in people's lives. So I m when I went to school, most of the parents of the children that I was were either business people or professionals, accountants uh or lawyers or doctors. Right? There was a very distinct difference. We lived in a pre-war flat. Most of friends that I played with had houses. Did they come over to your house? Yes, they did. And they would have noticed the difference. And you I was very well aware of that. I mean, I remember in my trick having this, you know, um, my dad had a 19, and I I graduated in 68, uh, a 1953 Hillman, and all the other kids' parents had very they it was called the Valiant. That was the car everybody had then. And they were sort of 66, 67, or 68 models. There was a very distinct difference between growing up, where you there were a few of us. I'm not the only one who went to that school who ultimately had similar backgrounds, but we were few and far between.

SPEAKER_01 11:39

And were you okay with your your mates coming over and seeing that you were? Yes, yeah.

SPEAKER_00 11:43

No, I didn't have I mean it had a very significant shaping of my own political life. Have you always been like outspoken, confident, extroverted? Not confident, but I certainly was outspoker.

SPEAKER_01 11:54

It's a different thing. Do you ever feel intimidated by anything?

SPEAKER_00 11:57

No. As you get older, you get less intimidation because really what's there to lose? Whereas when you're younger, under the apartheid era, when I would speak out and then think to myself, security police could be knocking on the door. That was when, you know, you thought three times about it. So but you know, at the end of the day, you were either going to be on the more decent side of history or not.

SPEAKER_01 12:20

Yeah. Speaking of intimidation, I was gonna ask this question later on, but being a judge here in South Africa, is it not by its nature a dangerous profession? In what way? In the sense that you're kind of giving judgment in cases. I mean, I'm not sure what you know you deliberated on.

SPEAKER_00 12:39

But I think there are criminal cases. And certainly when I was there in the early years that I was there, um there's no question that there were judges doing puckard trials who had huge amounts of security. Still to some extent. I never did any of those trials. I did I did criminal trials, but none that really were ever going to get me into serious trouble. Although all of us did have extra security offered to us by the state at state cost put into our houses. So there was always a sense that something might happen, but it was never, in my case, you know, I never, thank God, was ever threatened or felt threatened in that sense.

SPEAKER_01 13:21

But you've had colleagues, obviously that's Yes, of course.

SPEAKER_00 13:24

Absolutely.

SPEAKER_01 13:25

Okay.

SPEAKER_00 13:26

Right.

SPEAKER_01 13:26

That answers my question.

SPEAKER_00 13:27

Can you specialize in things as a judge, or do you just When you become a judge, um, what happens is you are, of course, uh a captive of the judge president who allocates work to you. Because my specialities were constitutional and commercial law, I got a lot of that work. But you have to do other stuff too. You want to do the odd criminal case, you've got to do unopposed uh uh cases, which includes divorces and all that sort of stuff. Uh, but I did quite uh quite a considerable amount of commercial and constitutional work, precisely because that was my background. How does that become your speciality? Became my speciality because I was an academic. Uh well, the commercial stuff is slightly more serendipitous. That is because when I finished law school and I wanted to study overseas, and um I I I don't think I was the most popular person in the law school staff. So even though I was second in my class, I didn't get any bursaries to go overseas, which probably was unfair, but we don't know. And um I needed a job which was allowed me to save. So I landed up by getting a job at the Old Mutual, okay, which was paying at that point about four times to five times what an article clerk would get. Quite, you know, in fact, more, about seven times. That's insurance. Yeah, correct. And so what I landed up by doing was estate planning, which was, of course, you know, structuring affairs for people to save income tax and estate duty. For rich people or just No, no, rich people, right? Because they wanted people to buy insurance policies, which would essentially pay for the estate duty. And I, um, to a large extent as a result of that, um uh um began, as it were, to become a taxoer. And then what happened was that about 20 months later, I think I I mean I was offered a job at the University of Cape Town because they wanted to tax someone to tax. And in generally speaking, you're not going to get many people to do tax in academic life because they can make too much money outside. And I was happy to do that. The commercial stuff the constitutional stuff was always because I was interested in legal theory and the politics of law. So that was stuff I was had been doing for years and years and years. That the, as I say, the the commercial stuff was much more serendipitous for the reason I've just offered you.

SPEAKER_01 15:58

We we had Prof. Dilip Karaj on the show. I don't know if you know him, he's a tax guy. He was at he was at the University of Kazarin, I think. But you mentioned something interesting, you brushed over it. Why were you not popular in law school?

SPEAKER_00 16:09

What did you do? Because I was quite outspoken about the fact that I thought that our law school was far too conservative. And when I compared, for example, University of Vartasrunt, which had John Dugard, or the University of Nattel, which had Baron Fanika and Tony Matthews, we had nobody like that. And I thought that was very wrong. That we weren't def our teachers weren't defending the rule of law and protesting about the tension without trial, like those three had very courageously done. And where would you voice all these opinions? Well, many were voiced amongst the student body uh and and at the university. So, you know, I was hardly somebody that a conservative law school thought w much of. Oh, so you ruffling feathers in in undergrad. Yes. Well, I was I was a fourth and final year student. Remember the I did a BCOM LOB, so it's a straight five-year degree.

SPEAKER_01 17:02

Okay. And why did you want to go overseas?

SPEAKER_00 17:05

I wanted to study further. I thought it was a good idea to do that. Well I'd been in I lived in Cape Town um my entire life except for you know, and then of course I went to Draberg for the old neutral. And um it is very much a sort of path that people took to go to to England to do postgraduate work. That's what I wanted to do too. And it was fantastic. I had a fantastic time.

SPEAKER_01 17:28

What was it like growing up in Cape Town? Um did you have like friends who were people of colour? Like very few.

unknown 17:33

Yeah.

SPEAKER_00 17:34

The start was. Um it was a very divided society. There were, when we were very small, there was a road called Tramway Road, which was right at the end of Seapoint, not far from where we lived. It was an anomaly because for some reason, for a long time after the Group Areas Act was promulgated, um, colored people in particular lived there. And they lived there certainly till I was probably 10 or 11, maybe. Can't quite precise, but certainly. And so we used to play, you know, and at that stage, of course, what does one know about race? But all of a sudden one day they were gone. Because they were removed. And you know, as you got older, you you know, you landed up by being in this kind of ghetto, if you wish to say, you know. Group areas acted terrible things.

SPEAKER_01 18:23

It's interesting you say that at that stage, what does one know about race? It tells me that may perhaps your parents didn't make a thing of it. I'll tell you why I say this, because when I was, I'll never forget this, when I was in grade seven, standard five, I made Natal cricket. I was the opening bowler for and I went to a uh a private school, a white school in in Durban. And I made Natal cricket, and I never I'll never forget being called up in assembly and walking, you know, past everybody that's sitting down in the hall. And one or two chirps from kids at that age saying, Oh, yeah, token. And this is in the year 2000, right? Wow. Token Charo. Token, you know. That's amazing. And I thought to myself, it's amazing because these are kids, like my I mean, I'm a 13-year-old, 12-year-old. Somebody must be telling them this. We we weren't reading newspapers or watching, there wasn't social media and all that stuff. I just figured it's the folks who do it.

SPEAKER_00 19:18

When we were small, I just maybe you're right. All I know is, you know, when you're six or seven years old and you have pickup games of soccer or cricket, you know, quite frankly, if you're on the side of somebody scores this a goal or hits a four, that's much, you know, you're not really worried about bloody race they're in. But I and but obviously as you get older, you're aware of this. And university became a particularly difficult time because at that stage, that was the first time that I started making friends who were black. But you could take them nowhere. Why you could bring them to the home, but because of the group areas act, you couldn't go to any restaurant or cafe or coffee shop because of the Group Areas Act. Crazy, yeah. You know, it was a totally different world. Um and so, you know the the the the Africa the apartheid regime did a quite an extraordinarily good job from their terms in keeping us all separate. Yeah. And buying the colour. The cost of which we've we still pay to this day.

SPEAKER_01 20:24

Yes. And your I mean, you did say that, you know, part of the community, your community did help fund your ventures at that stage. When you started getting into activism, was there sort of a kickback from from them? How how was it?

SPEAKER_00 20:43

No, the Jewish community has strange, strange politics. The established Jewish community said very little about apartheid and they were rather peed off by those of us who were complaining bitterly that they were so silent. But I was never they never withdrew money. Possibly because maybe the left hand didn't know what the right hand is saying, I don't know. Um weirdly, um they how can I put it I'm trying to put this inside context because it was slightly different then. If you look at it more recently, they're much more sensitive to the establishment about criticism of Israel. They are they it was slightly different then because i I'm talking about the 60s. Now it's true the 67 war uh came when I was in Senate Nine, but even then it was a very different regime to what took over within the you know, after that, everything went more and more extreme to the right. So today, interestingly enough, I have found that my own position in the community, not that I'm an active member of the community, is I I'm certainly frowned upon because they know that I'm hugely critical of the conduct of Israel. That's the no-no now.

SPEAKER_03 22:09

Hmm.

SPEAKER_00 22:10

So as a kid, did you leave Cape Town? Did you ever travel? Well, I went to Johannesburg when I graduated, because I was old mutual. Oh, mutual, yeah. And of course I didn't know neural. I I mean, you know, when I was a child, I went to Jewish Day School and we went to Israel for three months in 1966. Very different Israel to the Israel now. Very much a socialist country. And remember that was before the Six-Day War.

SPEAKER_02 22:34

Okay.

SPEAKER_00 22:34

Um and then thereafter, of course, uh uh traveled uh quite a bit um in the 70s as a student overseas. But my first big encounter was 1979 when I went to Cambridge. Big encounter being with Well, that's when I was there for over a year.

SPEAKER_01 22:52

Okay. But what was it like moving from Cape Town to Job?

SPEAKER_00 22:55

Oh, very Joburg was quite an extraordinary place, even though it was also very racially demarcated, not quite the same as Cape Town. And in those days, Hillbrow was a wonderfully a wonderful area to go to. It was cosmopolitan, and that's where people went on Sundays. There was the first exclusive books was in Hillborough. Next door there was the um the Hillborough Record Library. In those days there were records. That's where most people, like myself, spent a lot of our Sundays, and there were wonderful cafes and theatres, and goodness knows what. It was a very exciting city to be in. I lived in Berea and I loved it. It was fantastic. What year around the end was? I I I I came to Johannesburg at the end of 1975.

SPEAKER_02 23:37

Okay.

SPEAKER_00 23:38

And so was it a more diverse place? It was more diverse than Cape Town, but of course it was also a product of apartheid. One shouldn't be naive about that. Yeah. And then 76 occurred. Okay. And that was a very seminal event for me because there I was at the old mutual, feeling utterly politically irrelevant. And that was really where when in 77 I got offered a job at UCT. That seemed to me a no-brainer, because at least to some extent you could get back into some form of politics.

SPEAKER_01 24:11

Yeah, I want to ask about the nuances of that, because what do you think made you or went or initiated you, catalyzed you to get involved in the imbalances in society back then?

SPEAKER_00 24:25

I think that came much earlier, actually. I mean, you know, I think again, having parents that were working class, even though they were white, meant you were much more sympathetic to, you know, a kind of Marxist view of the world, class view of the world, which meant that from quite an early age, I sort of identified with that. I also think, this is the interesting part, I think, that there was a lot of Jewish history which had a very significant impact on me. I'll give you an example. There's a very famous photograph of a small child with a cap on, with these hands in, you know, like this, with an Nazi uh sort of bearing down on him. It's an incredibly pathetic photograph in the real sense of the word pathetic. And I remember seeing that and and being taught about the Holocaust. And one day, I couldn't have been more than about 12, going to my mother's offices for lunch, which was at the top of Adley Street in Cope Town, and seeing these awful policemen chasing two or three small African kids. And the parallel was so obvious to me that even as a 12-year-old, I thought to myself, how can I possibly protest against what was going in Germany and keep silent about this? So from a very early age, those links were made.

SPEAKER_01 25:55

Okay. That makes sense. So after the days of all mutual and planning people's estates, you moved back to K.

SPEAKER_00 26:02

Then I went to G then I went to UCT. What do you do there? That's where I taught. And I taught for right through to 1990.

SPEAKER_02 26:09

Okay.

SPEAKER_00 26:10

When um I went to Johannesburg, and then I became the director of the Center for Applied Legal Studies, replacing um John Dugard. Okay. And um and that's when we I hit it very lucky because I got there at the beginning of 1991. I don't need to tell you, Declerc had made his famous speech, and within a short space of time, almost all of us there were involved in the drafting of the new South African constitution, one way or the other. Wow, that's amazing. So we were, you know, I was very lucky to head up an institution which was staffed by all sorts of serious activists, many of whom had been detained for long periods of time, lawyers. Um, and and so that was a most wonderful time.

SPEAKER_01 26:54

Was the Jobug of 1990 any different to the Joe Burg that you'd been in?

SPEAKER_00 26:57

The Joe Burg of 1990 was starting to be different, right? But it was still fine. But by the time I left Johannesburg in about 95-96, uh, you didn't want to drive through Hilborough or Berea. Amazing, yeah? Because, you know, the slumlords had taken over. The decline of those places was absolutely apparent. And remember by then, by then, the entire business community drifted out of Central Town into Santon. Was that when Stanton started becoming Santon? Santon started uh became bigger and bigger from the 1990s, yeah.

SPEAKER_01 27:35

Why'd you leave in 96 or around there?

SPEAKER_00 27:37

I went back to UCT. My mom wasn't well. I wanted to um to some extent look after her. Um and we went back, but I had a joint appointment between Witz and UCT, and Chloe became a judge in 98. Do you have any siblings? Yes, a daughter, a sister. Sister, and she and She's a social worker.

SPEAKER_01 27:58

Okay. Thank God she's on the world. You go back to Cape Town, take care of mum a little bit. What happens then thereafter?

SPEAKER_00 28:04

Well, I I I had a joint appointment at uh UCT and Virts. So I taught at both universities, um, shuffling up and down. And then in 1998, well, in 96, um, just as I returned to Cape Town, I did an acting stint on the Cape High Court because Islam Mohammed was the Chief Justice and he wanted me to. I'll give you the reason in a moment. And then in 98, I they basic he basically bulldozed me to taking a permit appointment. I didn't really want to, but I did in 1998. Now, the reason that he wanted was because he was clever enough to realize this. He was a very clever man, but one thing he realized as well, astutely, was there were very few black lawyers at that time eligible for the bench. Because the party they'd done terrible things. So if you couldn't get practicing barristers to get onto the bench, perhaps you could get some from academic life. But because I'd had this unusual system of doing quite a lot of practice at the same time as being an academic, including a number of appearances in the Constitutional Court, the Supreme Court of Appeal, I think he felt that putting me on the bench could show that someone who'd be primarily an academic could do the job. And then when black academics were appointed, they couldn't object to academics. I was a kind of the full guy. Part of the strategy. Yeah, yeah. Yeah. And so that's when I became a judge in 98.

SPEAKER_01 29:41

I was going to ask, because it's not a you is it common, I don't know, that academics become judges.

SPEAKER_00 29:46

No, it's uncommon. Yeah. Um not entirely. There are more now. But why were you a number there were a number of there were a number of judges who had significant academic back backgrounds, having taught at various points, but had then went to the bar, and a number who had PhDs. Why were you practicing while you were um teaching? I was practicing mainly labor law and tax. Okay. And then when the constitution came in, I I I did a lot of constitutional stuff.

SPEAKER_01 30:14

Okay, Yak, you were going to say something. Yeah, so how do you actually become a judge? What's the process?

SPEAKER_00 30:19

Well, the you you become a judge because you get nominated. Anybody can be nominated.

SPEAKER_01 30:24

And then you go before the You've got to have a law backward.

SPEAKER_00 30:26

Well, you have to have a law degree, yes. And you're supposed to be properly qualified. Right? That's a totally undefined term. Yeah, you said supposed to be. Yeah. Well, because you you know and then the Judicial Service Commission makes a recommendation to the president, except with the constitutional court, he follows them. In the case of the constitutional court, he's got to he's given a list and he chooses from the list. And so you basically are beholden to the Judicial Service Commission for that appointment.

SPEAKER_01 30:55

And from the president?

SPEAKER_00 30:56

President appoints you.

SPEAKER_01 30:57

In my case, Mandela, yes. Okay. He has to sign off on it. In those days, there were no public interviews, or was it? There were, I had to go through public interviews. Absolutely. But it wasn't like televised like how it is now.

SPEAKER_00 31:07

Everybody It wasn't televised in 96, 98, sorry. No, it wasn't. Yeah. Um, but they were public instead you could go along and listen.

SPEAKER_01 31:16

How many judges in South Africa are there? Over 240. 240. Isn't it crazy? It's crazy if you think about it, right? It's one of the few job interviews that gets broadcast on television. Yeah.

SPEAKER_00 31:26

And it's quite intimidating.

SPEAKER_01 31:28

Yes. Was that like I wanted to ask you earlier, when's the last time you were intimidated? That you can remember? That you felt intimidated or nervous about it.

SPEAKER_00 31:36

Oh, I certainly was there. That was horrible. I mean, you remember there's about 20 odd people asking you questions, you have no idea what they're gonna ask you. And I don't think anybody who goes before that Judicial Service Commission finds it a pleasant process.

SPEAKER_01 31:50

Have you ever watched any one of those?

SPEAKER_00 31:51

Yeah, we watch them all the time on Judges Matter. This on YouTube. It's varied. They're sort of trying to be more congenial now than they were earlier, yeah. In the uh, you know, a couple of years, a few years ago was terrible. Oh, you mean a few years ago?

SPEAKER_01 32:06

Yeah, absolutely. When was the last time you went before one of those?

SPEAKER_00 32:09

Well, the last time I went, oh, um, I I can't remember. I I had to go uh twice because of the competition appeal court, and the second time my was probably after 209, and that was the one and only time I applied for the Constitutional Court. Right. So I probably went three times. But then but the last time would have been, oh goodness, 15 years ago.

SPEAKER_01 32:36

Could we see those interviews on TV now if we were they weren't televised?

SPEAKER_00 32:40

Okay.

SPEAKER_01 32:42

Fascinating stuff. What's it like being a judge? Like you're talking to the d two dentists, yeah.

SPEAKER_00 32:49

It's a difficult job. It's stressful. And the most stressful thing is actually dealing with uh custody cases. Having to make decisions about children. Incredibly difficult. Um so it's stressful, it's hard working, uh uh it it you're under resourced. I mean, I can't tell you how many times the computers broke down, the court the official computers. Uh we have less and less judges today have far less facilities than they should. They don't have books, their libraries are non-existent. It's it's it's it's a stressful and difficult job, and salaries have not kept up with inflation at all. So that's why a lot of people don't want to apply. Really? It's yeah. It's it's you know, um, you're taking responsibility for people's lives. That's not an easy issue. It's more lucrative to to be an advocate than to lead a judge. Oh, but sure. If you take a judicial salary, which is for a judge around about two million, um the senior counsel at the bar are earning between five to ten times that. So why would you ever want to be a judge? Well, that because of the so-called prestige. But if you run the process down, where in fact you don't get the best of the best, that starts deteriorating radically. So uh i are you think are you saying that the prestige associated with the I don't think it's quite what it used to be, and that's because I think a lot of the best lawyers, and that's you know, when I mean best lawyers should include significant groups of black and women barristers don't want to take the job.

SPEAKER_01 34:28

Amazing. Yeah, I was gonna ask about the um like the buck kind of stops with you guys, as you were saying. You know, you're taking someone else's hands.

SPEAKER_00 34:38

Well, it does and it doesn't. Remember this, of course, that that there always appeals up to the constitutional court. So there's you're not you're not you're not the last word in it, but yes, the buck does stop to some extent with you.

SPEAKER_01 34:51

Because I mean a lot of it is also interpretive. You're hearing from both sides. Of course, you've got a rule and judge on that.

SPEAKER_00 34:56

So and it's a it's a treadmill. You finish a case today, you get another one tomorrow. And you know, when you think about it, for the if when you're on your own, court starts at 10, ends at four. Admittedly, there's a tea break in the morning and a lunch break. So it's basically about four and three-quarter, five hours. It's like doing an operation, a serious operation every day.

SPEAKER_02 35:18

You've got to be a good one.

SPEAKER_00 35:18

You know, because remember, you can't nod off. You the person they're addressing all the time. But do you not? Surely you, you're a human. Well, you try not to. I mean, um, um, you know, and it's that's why you say it's exhausting at the end of the day.

SPEAKER_01 35:32

Yeah, I'd hate to listen to humans. And then once you become a judge, you you're basically peak lawyer. There's nothing what's what's after becoming a judge.

SPEAKER_00 35:40

Well uh for a lot of people it's to get to the constitutional court. Yeah. But once you're there, that's it. Yeah. And then do you ever go back to practice? No, as an advocate. No. Well, if you leave the bar prematurely, there have been some people who've done that, but very few. And you didn't do that, huh? No, it's it's not done. It's not the done thing. Then what do you do after I mean, let's just say you retired. Well, you know, uh when you I'm I've, for example, now advised the commission of inland revenue on a whole range of stuff. Inland revenue, that's SARS. SARS, yeah. I deal with that. Um a lot of judges do arbitrations, right? Which they're entitled to do. Um, some do commissions of inquiry. Do you get involved in s in legal fields that you just don't understand at all? That's always as a judge, you often have to.

SPEAKER_02 36:29

Yeah.

SPEAKER_00 36:29

And then you totally depend on counsel. Because what do you know? So you literally are hoping to goodness that you've got two people in front of you who are going to give you the full terrain. That's fascinating.

SPEAKER_01 36:40

Like, you know, like as if you're a dentist now and then some surgeon comes to you. Yeah. And you've got to figure it out. Yeah. Or like even in IT. A lot of like a lot of the stuff I see nowadays are like intellectual property matters with AI and things like that. And in your days when you were on the bench, there was no social media and all that stuff. It wasn't as prominent as well. No, it came much later, and that's horrible. I'm on on it, so I'm totally immune from the nonsense. But aren't you dad? Because social media, people just talk anything and everything about it.

SPEAKER_00 37:09

Yes, it's such a joy not to be there. I'm blissfully ignorant of what guys.

SPEAKER_01 37:14

But uh look, look. But I was just telling Yash before we came. I just Googled your name and you've got a very significant large presence. I was going to get to that.

SPEAKER_00 37:24

But I don't know, and I'm perfectly happy not to.

SPEAKER_01 37:27

Does nobody send you videos at this? No, I'm very happy not having to. You don't want viral clip. No. Yeah. Doesn't worry me in the slightest. But also, you I don't know, maybe this is my perception. You might be one of the look, we don't really see judges on on TV and having their own shows.

SPEAKER_00 37:47

That's true.

SPEAKER_01 37:48

So you're progressive in that sense also?

SPEAKER_00 37:50

Yes, I suppose so. I mean, I, you know, I was in an odd situation. I'd done television before I became a judge. Uh I did a program uh called Future Imperfect. Future Imperfect. Which was in the 90s. Right. Right. How do you get involved in that? Ah, it's a long story, but basically the short version is this. Um I was director of the Centre for Applied Legal Studies, and a couple of us had seen some international programs on law and constitutionalism, and we thought it'd be a bloody good idea if our centre could be involved in that. Not to present, to write and then one day um um myself, my my colleague Holton Treadle noticed that um MNET were looking for a program. They just fired John Burks, who was a legendary uh broadcaster, but was much better on radio than television. And um they were looking. So we, with a great deal of triak, went along and they said, if you can be, we they said, if you can be the moderator, you can have it. We said, no, we don't want to be on television. You don't seem to understand. All we want to do is we want to be in the background to the research. And they said, well, no, you know, so we failed our screen tests, and that was it. And then all of a sudden, a number of us thought, this is a bloody good idea. And one of my colleagues at the Center for Pride Legal Studies knew a woman who worked for a very famous producer called Roberta Durant, and she went off. This woman who worked for and said, Well, they've got this idea. And the long and the short of it is that we then started producing this program called Future Imperfect, which won a whole series of awards, and um it really it was basically about hypothetical cases about what South Africa would look like with 10 people on a panel. It worked brilliantly, and I did that from about 1994 right through to 98 when I became a judge. And of course, as a judge, I felt I couldn't do that. And then in a roundabout Why? Well, because, you know, for the reason that we mentioned, judge was on the television. And then about 10 years later, uh, ENCA kept on pestering me, and I asked for permission from the Chief Justice, saying it's a constitutional program, and that's how it happened. Why do you have to get permission from the Chief Justice? Well, I thought I had to, because I wasn't being paid, which means strictly I didn't have to, but because, in a sense, it was so unusual for a sitting judge to have a television program. Oh, so you never got paid for that. No, I deliberately didn't, because that would have compromised me.

SPEAKER_03 40:30

Okay.

SPEAKER_00 40:31

So it was all done for free. Did you get fan mail in the Mnet days? Yes. Uh and you get that and you get, you know, and and you know, you start to notice that people you're on an aeroplane want to talk to you. They think you know, so you you you land up even in this rather remote, in this rather stricted way, of suddenly, you know, not quite having the privacy that you thought you'd have, Joshua. And y did you mind not having the privacy? Well, I you know, that's a cost of the thing. Of course I did, but what could I suppose to do about it? Ah, that's amazing. And what did your colleagues have any comments? Because lawyers. Well, they weren't very happy about it, but then eventually a lot of them started to watch and they weren't they're not happy.

SPEAKER_01 41:11

So do you think it's a good thing?

SPEAKER_00 41:12

You no regrets. I think it was a good thing to do stuff on the constitution because I think to a large degree, um, we haven't educated the population on the constitution as much as we should have.

SPEAKER_01 41:24

Why don't judge why are judges reluctant to go on camera? I mean, are there rules about it?

SPEAKER_00 41:29

Because the job, because to a large degree, you don't want to compromise yourself on any issue which you have to sit on. So you can't start pontificating about issues of the day in circumstances where tomorrow you may have to adjudicate upon them. And somebody might some lawyer. Of course, and then you have to recuse yourself. You have to recuse yourself. I never expressed the view at all of my own on any of those television programs why I was never asked to recuse myself. I simply asked questions. Oh, so you're never asked to recuse yourself any? No, because I never ever, you could have looked and you'll see, I never said I think the follow. You know, I simply posed questions.

SPEAKER_01 42:08

Do lawyers like to argue with people, just in general? No, not really. No.

SPEAKER_00 42:13

Um, and I've got our lesser. How's how's dinner at your at your your place? No, no, well, my my children sort of argue with me ahead of it often. I think I'm quite a reactionary. You learn that by having our children always think you're a reactionary. Yes.

unknown 42:26

Yeah.

SPEAKER_01 42:27

Your son and I, as I said, we worked very closely in team Musaji. Yeah. Good friend of mine. We had dinner a couple of weeks ago with Aslam.

SPEAKER_00 42:34

Now, oh, because Aslam was his principal.

SPEAKER_01 42:36

Yeah, he was my principal also. I I mean Aslam left Norton Rose, and I was still at Norton Rose, and then I joined them. So did you join ENS as well? Yeah. I'd left Norton Rose and joined Aslam and then went back to Norton Rose after nine months. Really? He couldn't have been that happy. Uh I felt it was it was the first time because I've left my place of employment twice in my life. It was the first time in the week building up to it that I sat at my desk in tears because I I felt like I was letting Aslam down. He's the best liturgation attorney in the country. I agree. And that's what look, and and a judge has said it, and we're gonna put it out there. And Aslam's gonna be so proud to hear that. Because you know what you're doing. I don't know if Josh told you about this story, but when Aslam used to take Josh and myself to, or Josh and me, Josh and I, Josh and me, to consult. You'd always tell the clients, this this guy is so crazy. He used to be a dentist, now he's a lawyer, and this is Judge Dennis Davidson's son. It'd be so proud of it.

SPEAKER_00 43:32

He was a hell of a good, hell of a good little guy's lawyer. So it's a small Ashram. I mean, it's a small world. I mean, how do you know about other world because it's my son? No, I knew about him because it's a small world. Judges get to know about lawyers. So lawyers must be on good behavior. Of course. And judges have long memories. If you're unethical, you're gonna be in terrible trouble.

unknown 43:54

Sure.

SPEAKER_01 43:54

No, no, Aslam is well, that's only if you want to be a judge later on.

SPEAKER_00 43:57

I'll tell you. No, no, no, but the point I'm making is that that then I think the point I'm making is that judges sorry that um that judges remember people who appear in front of them.

SPEAKER_01 44:10

And if you and if you try to pull the will over a judge's eyes, you know, they'll remember for but even your colleagues here, you know among lawyers, among attorneys, you'll remember if somebody treated you decently or somebody was a sharp. Of course. Yeah. Absolutely. But it sounds to me just it's just relevant if you're a repeat offender. Like you'll always be working. There's always different matters. We we have this because I I work for the MPS in my day job, Medical Protection Society. So I give a lot of talks to doctors and dentists and things. And one thing that comes up often is this scourge of colleagues tending to badmouth one another. Oh yeah of course. That must be happening with lawyers also. Yeah. You know, there's a lot of great ideas.

SPEAKER_00 44:55

And the reason is because if you think about it, it's an adversarial profession. You're up against people all the time and you're trying to show that you're better than they are. It it it's it it's the quintessential profession for having divisions. Yeah.

SPEAKER_01 45:10

If you could go all the way back to med school and would you stay on and become a shrink?

SPEAKER_00 45:13

No, no, no, no, no.

SPEAKER_01 45:14

That was I'm perfectly happy to because you can change a society as a lawyer, right? There's a couple of people, a couple of professions that can change a society.

SPEAKER_00 45:22

And law is important. It was important it was important under apartheid because those, you know, I mentioned Dugard and the people at the bar like Isma Mohammed and Dennis Cooney and um um um Sidney Kentridge, Arthur Trussell thing, these people made a massive difference. You know, they took cases which pushed back the apartheid regime and created at least some space for political action. Enormously important. And of course today you know how much more so because you've got a constitution you can now so lawyers are really important in society.

SPEAKER_01 45:55

Yes, absolutely. And they shouldn't just then they're there to change and shape society absolutely I agree with you entirely. Okay agreed.

SPEAKER_00 46:02

So you write quite a few books you know what I mean I came to your book launch years ago when Praveen Gordon was around yes that was law fair yes this is an old book which was changed sorry updated because Jutas asked me you know would I think of doing a second edition and I um I didn't even have a copy of the first one so I said you better send me the page press and I thought nah and then I thought well it would be quite fun to look at what I wrote because when the book was written it was written um at the start of Democratic South Africa and then thinking well what did we get right and what did we get wrong? So each chapter here, there are new chapters where I completely overlooked things but most of the chapters are well what happened 25 years later. Okay. And you you say it's an old book. Well the first edition wasn't there then that's what I was it was called deliberation and democracy. Well for the listeners it's called democracy deliberation and democracy because because when when constitutional when South Africa became a constitutional democracy many many countries were becoming constitutional democracies. It was the wave of constitutional democracies now writing in 2025 right 26 I mean because of Donald Trump you know you've got you've got Modi in India you've got Orban in Hungary you've got a whole bunch of these people I mean they had you know Bolsonaro in Brazil there was a massive retreat from constitutional democracy around the world and I mean South Africa as I mentioned 27% of the electorate voted for parties that want the constitution abolished or significantly changed. So it's well if you take the the combined thing of MK, EFF and Patriotic Alliance, that's 27% of the people who cast their votes. So what I'm saying is we're in a situation that whereas when I first wrote this it seemed that constitutional democracy was here to stay I'm not sure any longer. What's changing it? Is it social media Well I I no I I think there's three or four things. I think firstly globalization um which created all sorts of inequalities the rise of populism Trump being a good example um South Africa's own incredible failure to actually have an economic policy that fulfills the constitutional dreams and therefore to a large degree an increasing criticism of constitutionalism in South Africa, all of which I'd overlooked which is I've I've had to kind of acknowledge and and everybody's going on a podcast nowadays and sorry everybody's going on podcasts these days and talking all sorts of things and well that's what I said trying to put the trying to put it in perspective that's what this book seeks to do. Should I immigrate?

SPEAKER_01 48:46

No why should you emigrate it's the best place to be in the world I've got a I've got a six year old daughter and lots of well not lots of some close family members that said yeah it's safe must be mad.

SPEAKER_00 48:58

I mean I think this is the best place to be at the moment look at the whole world's in in explosion I mean this is not a bad place to be I'm perfectly happy here.

SPEAKER_01 49:05

I agree with you and AI actually says that there's three places in the world right now that is the safest if World War III breaks out it's Peru, South Africa and New Zealand. I'm perfectly happy here leave me alone. I agree with you it's also one of the reasons why we've deliberately called this show Why Did I Become a Doctor South Africa. People have said drop it because it limits you but we are pro-South Africa and we believe in this we're not naiving I agree with all its flaws I'm I'm with you thank you because it makes me feel a bit better. On the AI point because we have there's no podcast in 2026 where you can have a chat and not talk about AI. But I don't know if you know Patrick Bracher he's an engineer in 2017 he and a colleague of mine wrote one of these blogs for Norton Rose about AI before AI was even a thing. And basically the article was talking about one of these AI programs that wrote the bar exam or something I can't remember the details but it concluded that and this is in 2017 the jobs that are safest from being taken over by AI are dentists and preachers. So if you want to be safe from AI become a market I agree.

SPEAKER_00 50:11

No is also going to be under serious cos absolutely I agree entirely I was telling Josh just the other day he disagrees with me but I think No I think it's absolutely right what is the time for yeah we got to go I mean I isn't no it's actually 25 okay I'm fine because I've just got to play in the catch up to good What time's your flight?

SPEAKER_01 50:29

I think about eight o'clock don't worry it's around the corner. Yeah yeah no so that's why I kept it late so I could see yeah Josh and I were having this debate about and he he thinks lawyers will be fine because there's the whole human I'm not sure that's true.

SPEAKER_00 50:41

I think they may be just like I think doctors will be because there'll always be a human element but increasingly AI will have a component of that.

SPEAKER_01 50:49

Okay.

SPEAKER_00 50:49

Is there anything we didn't touch on Judge before No I think you've been very comprehensive.

SPEAKER_01 50:52

Yeah have you enjoyed it enjoyed thank you to both of you okay thank you. Thanks a lot no thanks for in interviewing me welcome great