Exploring the Relationship between Identities and Judging

by | Sep 21, 2014

Justice Mokgoro discussed the role of intersectional identities in the judicial decision making process. She drew on her personal experiences as the South African Constitutional Courts first female, black judge to highlight the pervasive role that identity plays in the process of judging, and gave an insight into the nuances of a judge’s use of identity and experience.

This seminar was graciously funded by the Bapsybanoo Marchioness of Winchester Lecturership.


You can listen to a podcast of the seminar:


Seminar Review, by Shreya Atrey

On 4 November 2014, Justice Mokgoro participated in the Judicial Conversations series with Prof Sandra Fredman at the Oxford Human Rights Hub.  The follows from a conversation earlier this year with Justice Abella of the Supreme Court of Canada and Justice Baer of the Germany Federal Constitutional Court.

Justice Mokgoro presented a riveting personal account of her journey as the first black female justice at the South African Constitutional Court. She highlighted the historical context of the end of apartheid in South Africa and the transformative ideals of dignity, equality and freedom which informed the formation of the Interim Constitution and the new Court. Whilst considering herself to be privileged enough to be part of this historical political discourse, she touched on her own personal background as a poor black woman whose parents fought every disadvantage and discrimination to support her education. She recalled her father’s true conviction in the transformative quality of education. It is this belief in education which she identifies as the cornerstone of individual wellbeing and societal advancement. Having waded through a life of abject poverty, she also reiterated her passionate involvement and understanding of issues of poverty as a judge.

Justice Mokgoro explored at length the issue of whether the identities of judges matter in judicial discourse. Starting from the premise that identities did matter in judging, she highlighted the narrow space within which they influence a decision and delineated the vast field in which judges operate within the constraints of law and judicial procedure. She emphasised that these legal constraints form the primary motivations in the performance of the judicial task. But within this, the possibilities of interpretation and exercising judicial discretion do not operate as independent of the judge’s outlook based on who they are. However, she discounted the role of public expectation in bringing through perspectives of judge’s identity and political leanings in decisions and questioned the influence identity has on the outlook of the judicial officer as being relevant in every matter. She demonstrated a delicate and nuanced approach to thinking about how identities of judges inform their judicial approach.

As one of the first justices appointed by President Mandela, she spoke of the high ideals and integrity which infused the Constitutional Court. She spoke of the significance of the apex judiciary representing the wide demographic of South Africa. Justice Mokgoro expressed that the sheer representativeness of the backgrounds and identities of the justices at the new Court made the institution the most delightful place to be in.

As Prof Fredman rightly acknowledged, Justice Mokgoro’s sincere and insightful address will be remembered by the participants as a distinctly inspirational account of personal and professional success.

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