I see that Advocates for Transformation has resolved to lay a complaint of misconduct with the Judicial Service Commission (JSC) against the Supreme Court of Appeal’s Judge Carole Lewis. This follows a speech by Lewis last week in which she implicitly questioned the appointment of some black and female judges to the various courts since 1994.
She argued in a speech that the JSC has become dominated by politicians after the adoption of the final Constitution in 1996 and that “there is a perception now that political fealty is a more assured path to appointment as a judge than ability”, then continues:
I am advised that the work of dealing with the motion rolls in the large courts falls on the shoulders of the few with the experience to manage it – and that the consequences of that are not only unpleasant for those too heavily burdened but detrimental to litigants….
Suffice it to say that the time has come to accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that judicial education is ongoing and that new appointments are made only because of skill and experience and not solely because of race, and especially not political fealty.
She also argued that in order to safeguard the independence of the judiciary “appointments to the bench must be made by having regard primarily to merit – skill and experience. Political loyalty and race must cease to be the criteria for appointment by the JSC” and that “politicians should take lessons in constitutionalism and realize that they are not above the law”.
After reading the full speech I am sure that the complaint by Advocates for Transformation is not going to go anywhere. Lewis did not explicitly say that black judges were less qualified than white judges. Nor did she say that the transformation of the judiciary was not important. She also makes good points about the need for the independence of the judiciary.
But having said that, I have several very serious concerns about the remarks made by Judge Lewis and I think she was extremely unwise to wade into this debate in the way she did.
First, her remarks were made in the context of deeply entrenched racism in our society and will therefore certainly be interpreted by many as suggesting that black judges appointed to the bench are often unqualified for their positions. Whenever white people in South Africa talk about standards, many of us get the heebie-jeebies – not because we do not believe in high standards but because standards are often used by white people (sometimes unwittingly and unknowingly) to assert their cultural dominance and superiority over black people. Judge Lewis’s remarks have a whiff of that racial arrogance about it. Although I am sure she would be horrified by this assertion and would say she did not intend it as such, she should have known better.
Second, she compounds the problem by making a false contrast between merit, skill and experience on the one hand and the appointment of judges taking into account race on the other. She thereby creates the suggestion that white people have the merit, skill and experience and black people do not. Once again this is not said directly, but it is difficult not to read her words in that way.
Of course it is true that some people have been appointed to the bench that should not have been appointed and that some of them are black, but making generalisations linking merit and race is most unfortunate. It would be very easy to assume that Judge Lewis harbours unexamined and subliminal racism and even if this is not so, no judge should ever make remarks that give that impression. (That is also why I took issue with the remarks reportedly made by Judge Motata at the scene of his crash.)
Third, judges in our democracy are under attack. I think it is important for judges to stand up and be counted and to push back against politicians who call them counter-revolutionaries or drunks. But this should be done in a wise and politically astute manner. At the very least the remarks of Judge Lewis reflects a shocking political naivety and will do far more harm than good in protecting the judiciary.
Lastly, judge Lewis talks about the need to appoint independent minded judges, which is a good thing. But she seems to make the classic liberal mistake of not realising that many of those white lawyers with what she calls the skill, experience and merit are not more “independent” than the lawyers appointed at least partly in order to transform the racial composition of the judiciary. She seems to take her own views as neutral and objective, while she views “the other” as being politically beholden. This is a rather naive view of being in the world and disregards the ideological commitments that we all bring to the table,
That is why I think we should talk more about the nature of judicial transformation and the kinds of values we think judges should have that we need to appoint to the bench. No judge is truly independent (but judges must try and be fair and selfrelective) as every judge comes to his or her work with a set of (often unexamined) assumtions about the law, society and, yes, race. What we need is judges whose assumptions are closely aligned with the transformative vision of the Constitution – not judges who are classically liberal.
She was very emotional Prof and obviously missed her points, if any.
Pierre, apparently Mr Ngobeni wrote a 14 page letter about this matter, do you perhaps have access to a copy?
Prof
You’d be surprised at how many Black professionals feel the same way as Carol Lewis. No, not because they think white judges are more competent than Black judges, but rather that there are Black judges who are appointed to those positions purely through political affiliation.
The imminent taking over by Zuma as the country’s next President and with the many vultures supporting him purely because they expect their backs to be scratched too, I am wary about the real intentions of the Advocates for Transformation. It could be a smokescreen.
I am also concerned about your comment that Carol Lewis should have known better. It has some racial undertone. Carol Lewis (and everybody else for that matter) is right to voice out her opinions without having to look over her shoulder each time so as not to rub some people the wrong way.
We need to move away from protecting the feelings of minority bigots who hide behind the bad racial history of our country; while ironically benefiting from it – sometimes unfairly so.
Vuyo // Oct 28, 2008 at 10:28 am
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Unfortunately that is the best I can do for you Vuyo:
http://www.mg.co.za/article/2008-10-28-disagree-lodge-a-complaint
Vuyo // Oct 28, 2008 at 10:28 am
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Unfortunately that is the best I can do for you Vuyo:
http://wwwDOTmgDOTcoDOTza/article/2008-10-28-disagree-lodge-a-complaint
The judges in the SCA are in the main from the parlimentarist doctrine in which the legislators were more powerful than the judiciary. Most of them are indeed white and in their unexpressed minds believe in history in reverse. It is good that Lewis exposes her weaknesses in this regard.
She is contributing to let us understand the morass in the judiciary. Of course there are more legal experts that have ventilated adverse concerns with the linguistic dexterity and jurisprudential depth of african judges and legal experts.
Prof. Lewis does not have to directly mention the word black or african for society to decipher the content of her virulent attack on the crucial tramsformative process. In my view, judicial appointments have not reflected the geopolitical matrix of our beloved nascent democracy.
I must indicate that the speech exhibits resentment with new appointments and have subtle racial undertones which must be examined by the JSC.
The judiciary cannot abrogate appointment of judges to themselves. The JSC is a tool to balance the pendelum. Initiatives of politicians including the judges should not be regarded as sacrosanct.
I can determine the difference between autonomy and independence. The appoitment process involves academics, politicians, the judges. It is a participatory open appointment process. It is not entirely a political process.
It is time that the lid on the pot of discord in the legal fraternity must be lifted and society scrutinise the pace and intensity of change. I had once remarked that the current politico-judicial battles will expose the judiaary as un untilled land in relation to change to comform with the contemporary times. The judiciary is used by some racists white as a paltform to eschew necessary policy choices by the other organs of the state. We have seen these antics in some judgments.
it is time to intensify the change!
Pierre – this really is a horribly fawning and politically correct post.
The real problem is that she is white. Only when black voices start raising concerns will the issues she raises be taken seriously.
Tony in Virginia // Oct 28, 2008 at 11:06 am
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I find myself unable to associate myself with you on this one:
Prof is right to say that Carole Lewis should have known better. The racial past of South Africa cannot be over-emphasised. This past has obviously left scars on many people on both sides of the spectrum (Blacks and Whites). Therefore, it has become imperative that we act and speak with care to avoid being unnecessarily tagged as being racist.
This, however, does not mean that we should not deal with issues in a robust, effective and efficient way to get the necessary results. It only means that we should take care.
Prof was not trying to curtail Carole Lewis’ right to freedom of expression. This right, just like all other Constitutional rights, has its own internal (s16(2) and external (s36 – the limitation clause) limitations. Therefore, it cannot be used to substantiate an argument which is contrary to the ethos and telos of the Constitution – remember that the Preamble to the Constitution recognises our divisive past and the need to build one democratic South Africa with the values enshrined therein.
Carole Lewis failed dismally to take this care in her argument. Her argument, when read objectively, portray her as an anti-transformation force (despite her being an obvious beneficiary thereof) who is intent on using all it takes to curtail or even stop transformation and also, sadly, as a racist who still views whites as superior to blacks. This interpretation may be not what she intended to depict but it is justified on the objective reading of her remarks. Subjectively speaking, she may have meant otherwise but the ambiguity in her remarks and the apparent racial undertone are to be greatly regretted.
Pierre, this sentence of yours
“Whenever white people in South Africa talk about standards, many of us get the heebie-jeebies – not because we do not believe in high standards but because standards are often used by white people (sometimes unwittingly and unknowingly) to assert their cultural dominance and superiority over black people. Judge Lewis’s remarks have a whiff of that racial arrogance about it. Although I am sure she would be horrified by this assertion and would say she did not intend it as such, she should have known better.”
…has more than just a whiff of prejudice to it don’t you think?
Your trading on innuendo and feelings of something you imagine or presuppose but which was never said. Should we not address the points she is making?
This sentence of yours came just after you concede:
“Lewis did not explicitly say that black judges were less qualified than white judges. Nor did she say that the transformation of the judiciary was not important. She also makes good points about the need for the independence of the judiciary.”
Your comment has a racial undertone that has me concerned. Shock me Pierre racist, no way! What is the undertone I hear you say?
That whites are not aloud to address pertinent issues in our society without being accused of racism. Ie whites are incurably racist and should shut up.
If Dikgang Moseneke had made these points would you have argued similar?
There is more than just a whiff of prejudice in the dominant left discourse in this country. And the irony is that it’s because many lefties don’t think black South Africans can stand on their own two feet and argue for themselves.
When a survey shows that balck South Africans consider other black South Africans as most racist, its pooh-poohed. Black South Africans don’t know what they are saying.
When Scott Crossley does not go down for murder when the trial court find he was not present at the original assault by two black workers, its an injustice – because he MUST have been in charge. They must have helped him, not the other way around. He is white after all.
When black South Africans kills foreigners its because of a 3rd force or self hate. They are after all incapable like whites are of hate.
Your philosophies from where I am standing don’t look that different form the right which you despise, except they have a sweet lefty gloss over them.
The judges in the SCA are in the main from the parlimentarist doctrine in which the legislators were more powerful than the judiciary. Most of them are indeed white and in their unexpressed minds believe in history in reverse. It is good that Lewis exposes her weaknesses in this regard.
She is contributing to let us understand the morass in the judiciary. Of course there are more legal experts that have ventilated adverse concerns with the linguistic dexterity and jurisprudential depth of african judges and legal experts.
Prof. Lewis does not have to directly mention the word black or african for society to decipher the content of her virulent attack on the crucial tramsformative process. In my view, judicial appointments have not reflected the geopolitical matrix of our beloved nascent democracy.
I must indicate that the speech exhibits resentment with new appointments and have subtle racial undertones which must be examined by the JSC.
The judiciary cannot abrogate appointment of judges to themselves. The JSC is a tool to balance the pendelum. Initiatives of politicians including the judges should not be regarded as sacrosanct.
I can determine the difference between autonomy and independence. The appoitment process involves academics, politicians, the judges. It is a participatory open appointment process. It is not entirely a political process.
It is time that the lid on the pot of discord in the legal fraternity must be lifted and society scrutinise the pace and intensity of change. I had once remarked that the current politico-judicial battles will expose the judiaary as un untilled land in relation to change to comform with the contemporary times. The judiciary is used by some white racists as a platform to eschew necessary policy choices by the other organs of the state. We have seen these antics in some judgments.
The judges must vigorously engage the Bill and enhance its efficacy to introduce transformation in the judiciary
it is time to intensify the change!
Derby – Lewis application put on hold.
The White judge has postponed the application.
Obviously the white judge will grant Chris Hani’s killers the parole.
I bet a million.
The judge knows that the whiteman has killed the Kaffir so what? The baboon was killed it’s not really life- that’s how they persive us, aren’t they?
How many black offenders, in similar situation were denied by white court judges parole?
Let the white judge free the white offender because no crime was committed he only killed the baboon- all in the name of justice. I love this justice I must say!
“Prof. Lewis does not have to directly mention the word black or african for society to decipher the content of her virulent attack on the crucial tramsformative process.”
I rest my case.
“The judge knows that the whiteman has killed the Kaffir so what? The baboon was killed it’s not really life- that’s how they persive us, aren’t they?”
And again.
lindelani maseko // Oct 28, 2008 at 12:10 pm
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You will be surprised by how little you know about Hani’s death, or maybe you are intentionally turning a blind eye.
Sne,
You happy that the white judge, as they normally do with their white allies, will yet set free the white offender that raped out Hani’s life?
What do you want to tell me?
lindelani maseko, has it ever occurred to you that you are a racist?
I know I know you don’t actually think that balcks are better than whites. You actually thinks whites are better than blacks. Which is why you imagine all whites to be racist. It makes sense to you. Don’t worry your not alone, Thabu Mbeki also thought this way.
Which is one of the reasons I like Jacob Zuma. He has little self doubt, he is not racked by feelings of inferiority to anybody.
So its easy for him to be non racial. Believe in your self and perhaps you’ll stop feeling the whole world is out to get you.
Wessel,
Do you think the white judge will reject Derby-Lewis the parole?
The way I read this post is its unwise for any whitey to stick their neck out on issues of transformation because the cries of racism will follow. I agree with Wessel – we should be addtressing the issues she raises – if they do bare scrutiny, then by all means, lets look at what motivated her comments…
lindelani maseko // Oct 28, 2008 at 12:24 pm
Several years ago, a member of my family was murdered by 2 (black) ANC cadres for defending IFP members involved in political violence in court. They were found guilty and sentenced to a very long jail sentence. They were paroled (by a white judge) after two years.
erratum – if they do NOT bare scrutiny,…
Lindelani – do you think a black judge would refuse the application?
I think this racist white b****h should cease to be the judge.
I mean with immediate effect. I am glad that the Black Lawyers Association has filed the complaint with the JSC although the JSC is racist itself, we hope that this thing will be dismissed immediately.
That’s what these whites did with Judge President Hlophe, we must teach them the lesson as well.
Every mistake done by the white judge or officer should be referred to the JSC.
We learn from the best
lindelani maseko, I don’t know the facts of the case, I don’t know parole policy in SA at present, I don’t know how long they were sentenced for for a start.
So I have no clue. Can you shed light on this?
Tell you this though Anthony Altbeker – an erstwhile bleeding heart – has written and researched about out criminal justice system, and his opinion is that we let out dangerous criminals sentenced for serious crimes out way too soon.
But the government’s prisons are over crowded, and at the same time they dont want to build prisons necessary, because the ANC finds it politically embarrassing.
I’ll tell you one other thing. I worked for the TRC, and according to the 5 Norgaard principles in the Amnesty legislation on which I did my LLB dissertation, Derby Lewis was the perfect candidate for amnesty because it fell squarely in the definition of a political crime.
They had to prove that their act had a political aim and that it was proportionate. According to the Norgaard principles placing a bomb in a public space was indiscriminate and not proportionate to the political aim of liberating the country, but killing a senior political figure, or a policeman was.
In Namibia, where the principles were first created and used, a Swapo cadre who had tortured and killed a farm worker who also moonlighted as a tracker for the security forces was given amnesty, but another cadre who placed a bomb in a Windhoek shopping center was not.
Derby Lewis committed the classic political crime, but went down ironically because of political reasons it was unpalatable (to both the ANC and Nats) to set them free in terms of the TRC act.
The ANC because the loved Hani, the NATS wanted to show that they were not like the bad whites to their right, and because both the ANC and Nats feared a backlash from disappointed young black people.
This is hilarious!
The fact is that we in the legal profession, who deal with these judges virtually daily, know that most of them are incompetent and would never even have made it as silks in the old days (regardless of colour but purely ability) let alone as judges.
Why do counsel run to settle when certain black judges are assigned to hear a matter?
Face the facts – the emperor is stark naked so deal therewith.
Lindelani I hope you realise that the reason Pierre allows you to sprout this degrading bile on this blog like this
“we hope that this thing will be dismissed immediately.”
This is not because its ok, its because your black.
I am just curious. In the article the Prof states that;
(That is also why I took issue with the remarks reportedly made by Judge Motata at the scene of his crash.)
Did anything that the Judge Motata during his car crush incidence really amount to hate speech at all. Is calling a Afrikaner a ‘Boer’ offensive ?
Wessel,
Assuming what you are saying is not a joke, Prof De Vos explained the reason why he lets Lindelani et al continue to blog here…
Wessel,
Facts in Hani matter: murder.
sentence: life
90 % of whites offenders are out on parole be it medical or what I don’t care.
I don’t know what’s your concern
Sne, no its not a joke, and I missed Pierre’s explanations.
Fact of the matter is if his surname was Botes, and if all the references to white was black and vice versa some people that gloss over Lindelani’s comments would feel very uncomfortable.
And that’s part my point re this debate. Pierre dresses up his arguments as being against prejudice, but it is in fact based on a world view that does not see whites and blacks as equals now or in the future.
Wessel et lindelani – Please note that Clive Derby-Lewis’ application is based on the following: (1) An Act of Parliament, not policy, but an Act of parliament passed after 1994, determines that a person who has been sentenced to life imprisonment, who has already served 15 years of his sentence, and who is older than 65 years are entitled to be considered for release on parole. That is regardless of the race of the prisoner. (2) Two times now, the Parole Board has in the light of this recommended that he be released when he becomes 65 years, which is now. (3) Ncgonde Balfour (to please guys like lindelani) has now argued that, the three years that Clive-FDerby Lewis spent on death row, before the CC declared the death penalty unconstitutional and his senetnce was accordingly commuted into life imprisonment does not count as part of his prison sentence! Preposterous and a stupid argument indeed – any judge, white, brown or black will obviously reject this argument! (4) Janus Walus, the other accused is not being considered for parole simply because he is not yet 65 years old. In his case, he will have to serve at least 25 years before being considered for release.
Thanks anonymouse.
Anonymouse,
The parliament needs to pass the special amendment to the policy ensuring that Lewis or Derby whatever they are called dont escape the life sentence imprisonment. These busturads must rot in prison.
If they out we should called for their man slaughter.
lindelani – Well that is for the Parliament that were elected from the party lists of the different parties to decide – whether it will heed your call is a political decision and you will have to take it up with Parliament. I don’t think, however that Parliament will listen to individuals like yourself, whose views and prejudices are recially tainted.
“busturads”
Really, lindelani, your grammar and spelling are – for want of a better word – shocking. Atrocious. Your comments are painful to read. Not to mention the sentiments.
Libdem,
Are you lying to us for the sake of saving the argument?
Which court was the matter heard?, which year?, before which Judge? i.e his/her name
Please advise.
It is extremely disconcerting to find an admitted attorney such as lindelani holding the law and legal processes in such low regard.
As a student of law, I am of the belief that like any system, our judicial system is fallible but that the incidences of justice far outweigh the incidences of injustice.
To hear an attorney continually denigrate the very system he is supposed to uphold through his admittance and for him to hold the belief that the system is so fundamentally flawed as to allow the extremes of racial prejudice to prevail is appalling.
Perhaps, my enthusiasm for the law comes from my limited theoretical knowledge thereof, which has not been tainted by the practical application that legal practitioners and judicial officers deal with on a daily basis.
However, given lindelani’s age and the fact that he is working within a corporate environment, I find it unfathomable that he would have the practical experience upon which to base his extremely jaded (and racist) remarks.
Anonymouse,
I would not take it up with parliament, I would take it up with Walus or whoever myself.
Look what almost happened to Obama (attempted assassination) by young boys aged 18 yrs.
Clara,
good for you mrs perfect
Samantha,
Finish your legal degree and do your articles.
You will see how bloody racists white legal professionals are!
These bustards are really undermining our justice system and treat it as their own.
Black legal professionals are literally doubted, undermined, discriminated, in the legal profession.
These things have created structures that will be difficult to over turn for centuries to come.
It’s the call to all black lawyers to fight discrimination tat exists within the legal profession.
Wessel, I obviously disagree with you. On this Blog I have often criticised INDIVIDUALS who are black (and have often been vilified for it) but I try very hard to be sensitive to the South African context and not to say anything that could be taken as making racial generalisations. Racism IS at least partly about power (no matter what Michael Osborn says!) and context IS important. To make an argument against race based corrective measures in the appointment of judges (something REQUIRED by the Constitution, by the way, so an argument to ignore the Constitution!) in such a way that it can be seen as equating black appointments with inferiority and lack of merit is really most unfortunate, in my opinion. If one wants to make a point about bad appointments to the bench, fair enough. I think there has been very bad appointments to the bench – including the appointment of a certain Judge President! But to seem to suggest that the bad appointments were bad BECAUSE they were black is not on. Pointing this out does not make me a person who subjects black people to the bigotry of lower expectations – merely someone who has a keen sense of racial and cultural arrogance and wishes to warn against it.
Interesting article that I came across with on the net… Have a pleasant reading…
Racist drivel
Published in: Legalbrief Today
Date: Wed 24 October 2007
Category: Readers’ Forum
Issue No:
Available at: wwwDOTlegalbriefDOTcoDOTza/article.php?story=20071024133225622
In response to the disgraceful “opinion” posted on your site today, by a certain Lindelani Maseko, who in my opinion is rather brave to include a name bearing in mind the narrow minded trash posted, I would like to respond as follows.
To say that your comments are racist and narrow minded, not to mention nowhere near relevant would be an understatement. To further point out my amazement that such an ignorant person, with the writing ability of a five year old, could find their way into the legal profession would be a waste of time. The reality is that this matter has now been taken to such an extreme that Lindelani finds it relevant to post the following (and I quote):
“ Yes. Whites are racists. We all know that they (you) know it too. There’s no issue. You don’t need to like us – we don’t need to like you.”
I ask again, where is the relevance? Comments such as this, only serve to prove who the actual racist is, as well as again to show that the relevant issue will simply be swept under the rug and so called “blanket white racism” will become the issue at hand, an affliction apparently suffered by any white person who dares to voice an opinion. Once again any debate becomes a racial slur to the point that no-one can even recall the actual topic.
I wish to respond to your comments directly and as well as to vehemently object to your narrow minded, petty generalizations against all white people. Open yours eyes and realize that if there is a racist element at play in the whole Judge Hlophe issue, you are fueling the fire.
Whilst, I agree that this matter is now becoming more akin to a witch hunt than anything else, with the media merely serving to add to the propaganda, drivel such as that posted by yourself will only serve to move this country backwards instead of towards an era where issues are actually addressed and dealt with for what they are rather than turning to the ever more convenient excuse of racial agendas from those who are in fact the actual racists themselves.
Clayton Michael Lautenberg
Sne,
Interesting indeed.
Congratulations you now know how to google search someone.
Wessel van Rensburg (aka Mhambi) // Oct 28, 2008 at 1:59 pm
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Below is the post by Prof Pierre on why he does not want to ban Lindelani et al… For contextual understanding thereof, you can access it on http://constitutionallyspeaking.co.za/?p=699
Pierre De Vos // Oct 16, 2008 at 1:39 pm
The comments section on this Blog is very diverse and extremely lively: sometimes very well informed and sometimes clueless, sometimes reasoned and sometimes hot-headed. When I started this Blog I decided that as a believer in freedom of expression I will not censor the views of participants – no matter how extreme – unless I believe the views are so incendiary that they would incite actual harm. So I have only banned one person from the Blog in the two years it has been running. When I don’t like views or think they are hateful I sometimes just ignore them.
Pierre, Prof Ramphele has said much the same thing as Lewis J. Blacks from Lekota to Mboweni to Boesak have raised doubts about affirmative action. But no one accuses them of subliminal racism.
What you are really saying Pierre is this: There are just some things that no white person should ever say in public – irrespective of whether they are true or not.
As a purely pragmatic matter, you may be right. But don’t you worry even a little about self-censorship, and the narrowing of the terms of debate? And if you are correct that whites’ whining about AA manifests subliminal racism, is it not in any event preferable that they speak freely, so we can know who are the secret bigots in our midst?
Lindelani
I often refrain from giving my opinion on this blog because Im not clued up on the subjects. I then read the article and the blogs made and learn something from the intellectuals that regularly blog here. It might not be such a bad idea for you(Lindelani) to read and learn to the extent that you can write something worth reading. But that is only my opinion.
Re: L Maseko
Perhaps your tenure as an employee of Standard Bank should come to an end, as it is clear that instead of earning your salary, you are lounging on discussion forums, spouting racist drivel.
However, as an alternative to being disgusted at your disgraceful comments, I take solace in the fact that your hatred is derived from your self-imposed inferiority. I too would rage against machine if nothing I achieved in life I objectively earned in merit.
Yes, the degree that was handed to you by your university (did you really think whites and blacks are assessed by the same criteria?) and the employment at SB (really, you didn’t think you got there on merit?). So instead of utilizing the benefits which have accrued your way (devoid of any merit), you lounge on discussion forums during working hours. But hey who cares, you are entitled to it, are you not?
Forever we shall carry the burden of your incompetence , and forever you shall eat from our generous hands.
Now you run along and continue hating white people, whilst we ‘earn’ a living.
I would like to further add, if black judges are mediocre and whether it due to apartheid or what ever ‘disadvantaged background’ they may have encountered, it is STILL not right to have them as Judges. For whatever reason one may gibe for the lack of ‘quality’ judges being appointed into the judiciary it can/must not be an excuse to elevate them to positions in which they don’t deserve to be. I see nothing racist in what Judge Lewis said only that in most instances they is nothing as painful as the TRUTH. You do not solve past problems by using the same method as said by a great scientist many years ago, its sad that after such comments have been made we have not learnt anything.
Just ton add chill in everyone’s spine, under the current transformation policy Lindelani Maseko has a better chance than Prof Pierre of been appointed into the judiciary-eish
i.e. My post was in agreement with Micheal Orsbourne
Michael, I would hope my argument is slightly more nuanced than your caricature of it.
Yes, I strongly believe that context matters and that it is more difficult for a white person to attack AA than a black person. An example: If I sit around with my friends sipping wine and joking, I might well say: “Ag don’t be such a moffie” and it will have a very different and far less problematic meaning and effect than if Julius Malema would say his political opponents were “moffies”. There is no discernible effect on freedom of expression to say Malema should rather not use the “M” word. So when Rampele speaks out against AA it is more legitimate and less problematic.
But my argument in this case is not merely based on acknowledging this reality. In a deeply racist society in which white culture and economic power still have a very strong grip, and in which a master narrative about white merit and black uselessness still has very strong traction, it is very easy for comments like those of Judge Lewis to be interpreted as reinforcing and endorsing this master narrative exactly because “merit” is contrasted with AA. It reinforces the view that whites have merit and blacks get ahead despite not having merit. I would contend that probably the only legitimate way for a white person to talk about AA is to criticise a specific individual about specific acts. Some will still feel this is unacceptable but at least it would individualise and would not create the impression that the speaker buys in to the incendiary notion that black people are by definition inferior to whites.
Pierre here we have a blog that I presume should be steeped in the best traditions of human rights.
One paragraph in Judge Lewis speech says:
“It is not only commercial litigants who suffer the lack of experience on the part of many high court judges. There have, in criminal matters, been horrifying convictions and equally horrifying acquittals where judges have simply not understood the fundamental rules of evidence or of criminal law. I shall not dwell on these. They are a matter of public record. Suffice it to say that the time has come to accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that judicial education is ongoing and that new appointments are made only because of skill and experience and not solely because of race, and especially not political fealty.”
As somebody concerned with human rights I would expect you to at least comment on this as well on your blog, and not just what some people might infer from what was never said.
I am reminded that you never wrote about the murder of black foreigners in this country either. That is until it happened next to Sandton and could not be avoided.
Did you find it embarrassing? Or did you hope it will never be widely reported because some people might think badly of black South Africans? Or did it just not compute with your view of the world and therefore it did not exit?
Your so focused on walking carefully on your ideological eggshells that if it means ignoring gross human rights abuses is ok it seems.
You say about Lewis’s speech:
“It reinforces the view that whites have merit and blacks get ahead despite not having merit.”
Perhaps in your mind, but this is still quite a jump (and a rather offensive one at that) not supported by anything she said!
Forgive me if I am caricaturing your argument, Pierre, but you seem to be saying that white people should avoid criticising affirmative action as a policy (as distinct from criticising an individual instance), simply because they are white. How can you seriously believe that? Whenever did you start believing that classes of people should or shouldn’t start saying things, for the simple reason of their skin colour or sexual orientation or whatever? That seems deeply mistaken to me, whatever postmodern theory of meaning is intellectually fashionable. (In fact, it sounds like another grand narrative to me: “Hey you, whites, don’t say this because you are white and we all know what that means!”) And it seems particularly mistaken in the context of political public debate, where the clash of ideas is perhaps most important for the maintenance of an open society.
I would also echo Wessel’s complaint that your interpreting Judge Lewis as reinforcing the stereotype of racial-based competence is an unfair interpretation of her words. Meaning may be contextual and flexible, but words don’t mean anything you want them to.
I read the speech by Lewis. I think she is free to express her views. Appointees who lack merit of appointment will in the end become easy political charlatans as they repay favours.
I see nothing racist in her comments at all. The Advocates for Transformation must be careful that she may be able to back her views with facts and statistics. Sitting in the SCA, she has the advantage of reviewing the work of lower courts and may have real reason to complain.
Brave woman!
Sne // Oct 28, 2008 at 11:15 am
Many thanks Sne.
Hey there, Pierre and all you bloggers!
I thought I’d drop you a line from my side of the Bering Strait and share some home truths with you folk.
Well, first I want to say that I’m mighty impressed with what all you guys are saying over there. You people really know how to speak your minds on so many things. Here we stick to a short list of subjects and a shorter list of answers.
Now, this judge Lewis. I don’t know that I really understand what she was saying but I must say she has way bad dress sense.
And Clara, I want you to know – yes, this really is THE Sarah Palin, honey.
Now, I have a special message for that dude Lindelani. Hey, you are one heck of a guy. Real zany. You know, Lindy, I just know that you have to be really good-looking and all, and next time round when I run for Prez, I am going to invite YOU to be my running-mate. I like it when a man speaks his mind and boy do you speak yours! John and I have been having a little trouble out there in Redneck Country what with Barack stirring up things and I just wish you could be here to help settle things down again. I just KNOW if I could get you up on the stage next to me those Rednecks would all be voting for us Republicans double-quick.
Say, Lindy, you not a creationist too are you? That would be real awesome. You just think about my invitation, won’t you? John’s sure to keel over real soon and I might need you as VP. We need someone who keeps things simple, down to earth and spells it out in black and white.
Good to share with you folk and God bless America!
Pierre, thank you for your response which is, as is usually the case, thoughtful and responsive. But I disagree much of what you say.
As to your first point: Yes, it is easier for gay person to get away with saying “moffies” than for Mamela to do so. One takes such words from whence they come. Also, it may be an appropriate response to mainstream homophobia to domesticate his hateful discourse.
But Lewis JA was not using an epithet, or appropriating any discourse. Whether you agree with the content of what she was saying or not, she was making a fairly measured statement about a matter of immense public interest.
I turn to your second argument. You say comments like those of Judge Lewis may be interpreted as reinforcing and endorsing a racist master narrative. But we cannot be held hostage to our misinterpreters. What you have said on this forum has frequently been labeled as “racist.” Your every criticism of a powerful black man is jumped upon as bigoted. But we cannot abandon the public arena to those who willfully turn our words against us for rhetorical advantage. Those who reflexively play the race card are playing a terribly dishonest game. They trivialise real racism. They must be shamed, not pandered to.
People like yourself, who deride corruption whatever the complexion of the perpetrator must continue to speak out – and damn the charlatans who call you a racist for it. Likewise, those who sincerely believe – rightly or wrongly – that overblown AA is undermining service delivery, and privileging a small comprador class – must raise their voices.
You say the only legitimate way for a white person to talk about AA is to criticise a specific individual about specific acts. But as you note, the fact a person submits to that limitation will not save her from the lash. More importantly, the effect of this is to exclude white people from active participation in one of the most important contemporary debates in this country.
Also, to name individuals, as you suggest, may be more inflammatory than criticizing a tendency in the abstract. Do you really demand the Lewis JA identify particular appointments that she thought unwise?
Do not misunderstand me. White racism remains rampant, and must be condemned in every manifestation. But to conclude that a person is racist because she adopts a position on AA that is shared by prominent, well respected black people is just unacceptable.
In a comparative context whites are still a majority in the judiciary, in other words, when we disaggregare, indigenous africans, coloureds and indians, white still call the shots especially in SCA. I will however concede that there has been some significant progress towards cultivation of representativity on the bench.
I argue that diversity is an indespensable element of the holistic transformative edifice. The is a need for nurturing true constitutional democracy and such will occur when Lewis genuinely realises that such democracy can only be pivoted upon the substantive doctrine of equality that jetiisons the hollow and simplistic equal treatment of applicants to the bench without reference to historical inequities and imbalances which are so pervasive and largely account for the limitations pronoucing themselves in the work of apparently (black judges)!
Lewis is an eloquent spokesperson for seemingly disenchanted senior white advocates and judges that feel humiliated when unremittingly asked about their past like Louis Harms asked about his being a former member of the broederbond and his role in the Commission that saw no evidence of hit squads in the recent interviews.
If a first language english speaker or an english linguist assesses my languange gualities one may find multiferious faulty incidents. These are cultural inhibitions which must not be employed to measure my intellectuality. Perhaps you ought to ask me to author a judgment in Pedi to illustrate my linguistic artistry. The employment of parochial cultural tools to analyse capacity is misleading and irrelevant.
The same senior white advocates may prove to be nuclear exponents of old aparheid legal order. We must be mindful of the fact that our constitutional jurisprudence was hatched in 1993 with the heralding of formal democracy. This crucial historical moment did not bring with it substantive change in society.
The legal fraternity remained unchanged at the core. The values espoused by some judges remain undiluted by new developments. They stoically yearn a journey back in ages and do not embrace the new constitutional philosophy. Some black and white judges want the death penalty.
This is the intersection of my perspective with that of Lewis that true constitutional democracy is yet to be instilled in the minds of unwilling bodies of all colour or creed.
It this context, I take issue with anybody who recognises good law when it is written in english or afrikaans(without typographical errors). This is unjustifiable cultural inclination which explains that the ruling social class seeks to subjugate all cultural groups to theirs.
Lewis invites a discourse on the tranformation of the judiciary at a structural level and invariably challenges the attitute of not involving the judiciary itself. When judges take judgment they do not call politicians on a preliminary debate. The Bill must be dissected by the judges and they must assert their views unforgivingly and the legislators must indeed carefully and thoroughly consider these important contributions.
What is clear in the text of Lewis is that white judges are under fire at the hands of unscrupulous politicians who are unswayed by merit, skill and experience.
The danger of this is that the merit, skills and experience vouched for does not relate to critical contemporary legal jurisprudence. A judge who skillfully sent liberators to hang may be the one that has enough judicial experience as was long on the bench. Attorneys and Advocates almost present cases the same way. Perhaps it is the vigour which may lack in some magistrate courts.
I find it inclonclusive generalisation to suggest that the morass in the bench is generated by attorneys and academicians.
On the contrary, it is the writings of academicians that essentially enriches the decisions of the judiciary. Jurisprudential intensity is the property of thorough research and specialist focussed allocation of cases. You cannot allocate a criminal case of a commercial law expert and expect a miracle in very complex cases. Generalists have the propensity not to be profound in their judgments. There are some who are just as good as a speacialist when the necessary research tools are at their avail.
Why does Lewis only talk for senior white advocates and judges? This is where the a find fault. Are white judges and advocates the only ones capable of disabusing their minds of their ideological womb?
Blacks are inherently syphathetic to politicians. We have politicians of all main colours in the country. So beneficiary of aparheid may well support the opposition to the ANC and aparheid victims may be well-disposed towards the ruling party.
This is possible if they are/were disloyal to the oath for being on the bench
Being white or black does not bequeth one with intellect. One has to exact oneself in vigorous study to acquire knowledge.
The issue of representativity is a question of building a non – racial, non – sexist, democratic South Africa in which not only a majority of whites are judges and blacks in prisons as a partial consequence thereof or otherwise.
I however think we should invite more judges to express their thoughts on this issue and perhaps we would find a solution to the challenges of the legal fraternity.
On a lighter note. Prof De Vos, I have contacts for Malema and reckon just a conversation with him may cause you to know him better. He is not that dumb. He is a very assertive character with a great sense of humour. We serve together in the NEC of the Youth League. We have all sorts of young aspirant intellectuals with admirable academic credentials in there.
I always laugh at the ignorance of some contributors that seem to hold a view that the YL is bunch of thoughtless children, “baffons” “thugs” “hooligans” and more related derogatory epithets.
I truly enjoy the discourse on this Blog including the outright racist remarks from some persons which only serve to alert us to the existence of racism.
Regards
Ishmael – re the ANCYL, our ignorance would be overcome if the YL leadership made the effort not to act out consistently as bottom-barring, kebble bribe receiving, gucci bmw chasing, violence and bile spewing buffoons, thugs and hooliganic morons. You have become an embarrasment to the ANC, and to adult South Africans of all persuasions. Assertiveness and sense of humour are not important, some maturity and leadership is required.
I find it interesting that both our Zimbabwean friends, Mqo and Samaita did not see any racial undertone. Where some of our local commentators see the racial tone as an objective reading of the language of the piece.
I hope that someday the class and culture aspects of racism also gets enough airtime, because I think all sides would be able to find some small piece of solace in understanding its role.
When educated people look down on the “unintelligent” opinions of the uneducated, it transcends all colour boundaries, and you can start seeing the pull of class values, and how much of a role it plays.
When in one person’s culture you have to stand when an elder comes in, and in another you must keep sitting to show respect, then you can start seeing the subtleties of cultural values and how utterly oblivious you can be to them.
z // Oct 29, 2008 at 9:45 am
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Very interesting indeed.
Samaita ends her post by saying Carole Lewis is a brave woman. This is rather puzzling to me. They say there is a very fine line of demarcation between valour and ineptitude. Carole Lewis’ remarks have transcended that line and descended into ineptness. I will not re-iterate here my reasons for saying so as they have been exhausted to my satisfaction.
As for Mqo, to say that what Carole Lewis was saying is the truth amount to unchallenged ignorance of the justice system in South Africa. Perhaps he should read the address Advocate Vuyani Ngalwana to which one of the bloggers here refered us. I am almost certain he will find answers to the apparently mind-blowing questions which were posed by Carole Lewis in her address. It is also interesting (refering to Samaita) that Advocate Vuyani Ngalwana also backs his views with facts and statistics and Judge Carole Lewis forms part of those statistics…
Sne
Also consider that our Zimbabwean friends do not come with the same baggage to the reading of the piece. Both of them are keenly interested and informed on SA and Mqo studied here.
By this I mean not to make any value judgement on the piece myself, or on whether their perspective is correct, but just that much of the reading of this piece can easily be shrouded in historical, cultural forces which inadvertently make us “read between the lines” and question the motives for certain statements when not explicitly stated.
The problem I have with Pierre’s approach is that its prevents him from getting around to dealing with the substantive issues at stake. For example: Lewis JA alleges that motion court rolls are overburdened, because of a shortage of experienced judges. Now, either this is true, or it is not. But Pierre opts not to deal with that question. Instead he focuses on how Lewis JA’s might be interpreted through a racial lens.
Perhaps the more interesting question is whether her words reveals that Lewis JA is a racist. That is an important question. It would be alarming if she was. Again, though, Pierre does not deal with the issue. For him, the issue is not whether she IS a racist – but rather whether her statements will tend to be INTERPRETED as racist, in light of the background “master narrative.”
This is not an uninteresting hermeneutic exercise. “Reader reception” theory indeed suggests that the meaning of a text is to be gleaned from how it is understood by its actual audience in a given context, rather than by anything in the mind of the author, or in the “objective” text. It is just a pity that, having indulged in his fascinating interpretative exercise, Pierre does not go on to the substantive allegations made by the Judge of Appeal.
z // Oct 29, 2008 at 10:58 am
“Also consider that our Zimbabwean friends do not come with the same baggage to the reading of the piece. Both of them are keenly interested and informed on SA and Mqo studied here.”
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I disagree with the first part of the quote. I cannot say with sufficient certainty that they have not been subjected to the historical background of this country which would not account for their having “some baggage to the reading of the piece.” The consequences of our racial history are there for all who are objective to see. Therefore, if both of them are objective then they would have seen and therefore night have that “baggage” you have alluded to.
Secondly, the “baggage” that you have alluded to may not necessarily be a baggage in the strict sense of the word. It is in fact necessary to give context to any interpretation (contextual interpretation) which necessitates such, e.g. on transformation issues. Carole Lewis’ address needs context in order to be interpreted in a manner which would bring us into the circumference of light as far as transformation issues (including obstacles!), are concerned.
If I were to use the Constitutional Court’s reasoning in President of the Republic of RSA v SARFU, I would end up with a conclusion that, in fact, the people who carry the “baggage” are more qualified to make an informed decision in this instance due to the fact that they will have more knowledge about the issues involved and how they apply in a realistic manner.
I agree, however, with your second part of the quoted paragraph.
Can I just say that I find this by far and away the best blog with the best comments on South African political issues.
The quality of and commitment to the debate is high. If the whole country had these kinds of discussions I’d buy shares in SA LTD tomorrow.
Sne, thanks for that link!
Pierre when are you printing the Constitutionally Speaking t-shirts?
Vuyo and Wessel,
It is my pleasure guys…
Sne
I think you intertwine baggage and contextual “social/cultural experience” (I don’t know how to put simply the SARFU issue, which as far as I remember is about the judge bringing his valued perspective as an individual with unique social and cultural experiences)
To clarify: what I mean by baggage, is that we come from a very recent history of oppression which has left scars on many as you have put it before.
This is conceptually related but different from what I mean by baggage. Baggage can be seen as negative experiences which have scarred you and left a possible inclination to bias when interpreting issues related to those experiences.
So for example a judge might recuse himself from a case involving a man who murdered his wife (overly strong example, but I have limited time to think up a better one).
What I am noting is that you for example mentioned:
“Her argument, when read objectively, portray her as an anti-transformation force (despite her being an obvious beneficiary thereof) who is intent on using all it takes to curtail or even stop transformation and also, sadly, as a racist who still views whites as superior to blacks. This interpretation may be not what she intended to depict but it is justified on the objective reading of her remarks. Subjectively speaking, she may have meant otherwise but the ambiguity in her remarks and the apparent racial undertone are to be greatly regretted.”
Yet, other black commentators, notably two from Zim, have not considered it laced with a racial undertone. Would you contend that their reading is not objective? In what way has their objectivity (as a concept) been compromised?
I think your piece would make more sense if you swapped the words “objective” and “subjective” (and their derivatives). If someone did not explicitly state racist views, then a subjective reading is what makes one to interpret it in that way. Not that subjective cannot be true, or should be discounted or should not be a consideration when writing (to avoid misinterpretation).
Yet, there is an (unknown) threshold where a person’s contextual interpretation could turn out to be incorrect, and someone could be unjustly derided based on perceived motives read into a text. Once again I say this without making any judgement on this specific text myself, but merely commenting on the differences to its interpretation.
When something is bad, it is bad klaar. To point you back to my previous post. Lets take for a moment that WE don’t know Lindelani and the dear Prof. Their views and what they asrcibe too is blank to all. Under the current transformation policy of the judiciary, who do you think has the best oppurtunity to be appointed as a Judge?
An example is the appointment of Hlophe JP who at a young and inexperinced point in his life was selected as the JP of the Cape. This is a young acedemic with no experince whatsoever in actual judicial adjucation is nominated as a JP?! Need i ask what resulted from such an appointment. Now if someone (a white) pointes to the fact that, “these newly appointed Judges are detrimental to the judiciary”. What must i say? Should i just hop in to lindelani/thabo mbeki racial rhetoric that; “we should not critise them?”
Yes, racism is still alive in RSA, especially within the judiciary. Its difficult as a black law student to read depressing judgements which are clearly racist and narrowly minded given by judges such as in the Land court and worse by the SCA (read the Rabie case). But the truth is simply forcing Lindelani into the courts based on their race will not solve anything. What Lewis said is TRUE and THE TRUTH WILL SET YOU FREE!
Oh I forgot to say hi to Sarah Palin.
Can I just say Sarah, although I’m rooting for that Obama fellah, you sure look awesomist.
Wessel
I second that, she is GEORGEOUS!
Wessel and Mqo,
Todd Palin (Sarah Palin’s husband) should be seriously worried at this stage…
Z, Mqo and Wessel, you have all made some very good points. (Poor Pierre is quite isolated on this one; his only allies in the debate are embarrassing to more than supportive of his position.)
Nevertheless, I would have to say that Pierre’s position is at least arguable. To put it at its best (and I am sure he will correct me if I am once again caricaturing his view), his argument can be summarised thusly:
1. There is no indication that Lewis JA is subjectively racist.
2. In isolation (to the extent any text can ever be read in isolation), what she said was not objectively racist either.
3. But Lewis JA’s was negligent, in the legal sense that a reasonable person in her position would have anticipated the adverse reaction.
4. That being so, the question is whether the statement was also wrongful, or, to put it another way, in the public interest. In view of the “incendiary” quality of the speech, the harmful impact of her speech may be said to outweigh whatever public interest attaches.
I am not saying I agree with this analysis, or suggesting that the elements of delict should apply to what Lewis JA had to say. But I do think that this kind of analysis serves as a helpful heuristic.
z // Oct 29, 2008 at 12:22 pm
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Pertaining to baggage, I re-iterate my position that it does not result in lack of objectivity in this case but it enriches the party making the submissions concerned.
Yes, I argue that their interpretation is not objective but instead it is too remote. It is more like that of ‘an armchair critic who is wise after the fact.’ What has compromised their objectivity is their remoteness from the transformation that is taking place in South Africa. I understand that both are studying here or studied here but we cannot run away from the fact that a more “feel” of or “direct contact with” the reality of transformation which is constitutionally entrenched would have informed their objectivity very well or to the benefit of objective interpretation of the remarks of Carole Lewis with their racist undertone.
The SARFU case is used to stress the fact that instead of endowing both Samaita and Mqo with the objectivity in respect of this matter, transformation, their remoteness has deprived them of a more informed interpretation which borders not only on what is contained in the article but of giving it context and interpreting the article in the light of the peculiar circumstances of South Africa.
In order for one to understand this, one merely has to look at the Preamble of the Constitution to see the need for the transformation. In addition, one has to read the address by Advocate Vuyani Ngalwana to realise that Carole Lewis’ address was based on misinterpretation of the policy of transformation (or the detest thereof!), misrepresentation of facts, and a racist undertone.
thanks boys. you’re too kind. you guys sound kinda of cute too, so if things down there in South America get real bad, ring me up at the White House and I’ll see if I can find you posts to fill.
You know, I’ve never been to your part of the world but I really loved the Rio Carnival, so I’m sure I’ll love your city too.
Sne, Todd must look after himself. Hillary survived.
Don’t forget – vote McCain.
Sne
I think we differ on the meaning of objective. Many discussions falter when there is no common set of definitions. Here are two quick ones grabbed of the net (dictionary.com and merriam webster):
“not influenced by personal feelings, interpretations, or prejudice; based on facts; unbiased: an objective opinion. ”
“expressing or dealing with facts or conditions as perceived without distortion by personal feelings, prejudices, or interpretations bof a test : limited to choices of fixed alternatives and reducing subjective factors to a minimum”
I am unsure as to what a legal interpretation of subjective is, but we are not really dealing with a legal context per se, as much as comments on the judicial system.
Honest and public debate is crucial for democracy. One aspect of Mbeki’s downfall and the current crisis is that he undermined such open debate.
Professionals in positions that are important to the public commonwealth need to be able to speak out and to be heard. They should engage in public debate without the fear of having to censure themselves for political reasons.
Transformation and deracialisation of society are a necessity. And the way society goes about these have to be subjected to questioning and debate.
The inclusion of race amongst the criteria for professional appointments can have negative effects on these appointments, if race trumps all other criteria for appointment.
A critique of affirmative action does not have to be racist.
The problems with affirmative action and race-based policies are well researched all over the world.
Instead of less, we need more public discussion of race-baed policies and their consequences.
Sarah
McCain oven baked chips? No thanks.
Thanks for the help Michael. Your analysis is quite helpful. I tried not to attack the Judge personally because I am a bit worried about doing that in the present climate and I do not think it is helpful to shout racism as that is very broad and unsubtle. I do think the way she chose to address the issue was very unwise as it seems to reflect a cultural arrogance that she should have known will deeply offend many people (at the very least). By the way, I see the Deputy Chief Justice agrees with me as he said in a speech that it was unhelpful to make the remarks that she made.
There seems to be two separate issues here:
(1) On AA: many of the readers think it is acceptable to contrasts appointments influenced by race with “merit appointments”. My view is that this is deeply offensive as – at its crudest – it suggests that black people have no merit (and perhaps can never have the same merit than white people). This is a deeply held racist trope in our society and goes well beyond semantics. It is about the often unspoken and unexamined assumptions of cultural and racial superiority and to me this kind of argument suggests exactly why we SHOULD have AA because without it we will NEVER eliminate the cultural and racial assumptions of white superiority. Moreover, if we say – as judge Lewis did – that AA based on race is bad because it has resulted in the appointment of many bad judges, I cannot see how one can jump around and say that one did not say the bad appointments were black. The fact that she defended herself in this way seems to support my point that unexamined assumptions about cultural and racial superiority that many black people experience every day in SA and elsewhere remain a problem even amongst seemingly educated people appointed on “merit”.
(2) Can white people criticise: This is a more difficult point to deal with in THIS case because the person who made the comments was a judge and should be more careful than the rest of us. Perhaps it is unwise for a sitting judge to make such controversial statements – no matter what his or her race – as it polarises the judiciary and creates the impression among many South Africans that the judiciary is “untransformed” (a woolly term, yes, but one with very strong political impact) and this affects the credibility and legitimacy of the judiciary. If I were ever to be appointed as a judge (above Lindelani Maseko!) I sure would never say the things Lewis said.
sarah palin // Oct 29, 2008 at 3:03 pm
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Geography lesson;
South AFRICA is a COUNTRY which is at the southern-most part of AFRICA, as opposed to South AMERICA which is a CONTINENT that was once joined to NORTH AMERICA, another CONTINENT, before the Panama Canal was dug by the French and later by the United States in order to facilitate trade in sugar cane with the West Indies islands throught ships from 1899 until early 1900s, if my memory serves me well.
On Todd, it seems like you are making it a habit of cheating on your spouses in the White House… Any secret on George Bush…?
On McCain, I would suggest that you choose the most opportune moment to jump ship. Why would you bother yourself with the captain of a sinking ship…?
Thomas Blaser // Oct 29, 2008 at 3:22 pm
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I would love to agree with you but most of the people who have just turned in their ANC membership cards maintain that they held differing views and were then secluded from taking part in party activities. A good example will the guy (I think he was white or coloured) who was on etv last night who said that he, with others, were told who to vote for and once they differed, they were prevented from their roles as members of the ANC. Your submission therefore, is misguided at best.
Pierre De Vos // Oct 29, 2008 at 3:27 pm
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I agree Prof. I add that her views are scary, having regard to the office that she holds, that of a judge… Makes me wonder whether she has ever taken cognisance of section 39 of the Constitution…
z // Oct 29, 2008 at 3:20 pm
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Both your interpretations of ‘objective’ curiously include ‘facts’. Assuming both are correct, I ask thus;
1. Is it not a fact that South Africa have experienced the racist past that I say must be the backdrop of any trasnformation policy?
2. Is it not a fact that our Constitution, especially the Preamble, recognise the injustices of the past, mandates ‘healing the divisions of the past’?
These are the two pillars or facts I am resting my argument on. Unless your argument counters these two facts, it is either misguided, unconstitutional, racist, anti-transformation, subjective, or simply misplaced…
Pierre
I am fundamentally pro AA as a principle for restoration (implementation thereof is another discussion), but I suggest there is a problem in the logic you apply to this.
As per the logic you suggest in point 1, I argue that effectively AA can never be criticised, because the only thing I can think of that it could be contrasted with is merit. So any criticism would have to cover merit and would thus reflect badly on those appointed on the AA scheme (which includes white women). This holds true regardless of the colour of the person doing the criticising.
Or can you think of any alternative systems which aren’t based on merit?
Sne – I see Adv Ngalwana is being held up as some sort of sage guru in these affairs. Why?
And your “racist undertone” smearing of C Lewis speaks to severe insecurities on your part that I think you need to deal with urgently.
For the life of me I can’t see what the hooha is about what C Lewis had to say. What she said is self-evidently (ie objectively) true of the judiciary (eg Hlope and Motata who have been utter disasters, and are currently doing nothing whilst pulling fat judge salaries – what a waste of resources!) and many other state and public institutions eg the disastrous landbank, the chaos at eskom, education and health systems producing almost no education and health care despite a very high per capita spending, a defense force unable to play with its new billion dollar toys. home affairs now so corrupt no-one trusts our passports anymore etc etc et-fucking cetera. All these institutions, which are now fully representative/transformed, scream out sheer criminal incompetence at all levels.
There is very little hope for this country unless our black leaders and intellectuals start speaking out against the current gravy train entitlement mindset that seems to be pervading our state and public institutions. Shouting down clear and coherent arguments in this regard, such as that made by Lewis, as racist or coconut/sell-out does not help.
Thankfully the new ANC is making some encouraging noises in this regard.
z // Oct 29, 2008 at 3:54 pm
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Prof and I, including some bloggers herein agreed, I think we were discussing the appointment of Cameron J to the Constitutional Court, that the best way of dealing with AA is to choose a candidate who fits the concerned AA beneficiaries from among candidates who are the necessary requisites for the concerned job. To illustrate this in an example;
If there are twenty people who qualify for certain government job consisting both AA beneficiaries and those who are not, based on merit, then the best way would be to appoint the AA beneficiary from those who qualify. This will obviously not mean that as an AA beneficiary you can get any job ahead of white males who are suitably qualified for that job regardless of your qualifications.
Carole Lewis’ remarks suggest very glaringly, that she does not understand this. To her all people who are AA beneficiaries are not qualified to do the jobs they are in but are there by virtue of AA. She does this but practically blaming everything that is wrong in the judiciary on the AA appointments. This is an ignorant, arrogant and racist statement to make. Not only is she insulting the government’s transformation policy but she is also insulting her colleagues who are judges and magistrates. The fact that she said there are qualified black judges and magistrates does not take away the damning impact of her ignorant, arrogant and racist remarks. I rest for now…
Sne
If you read carefully I did not talk at all about the AA, but about people saying there is a racial undertone in the article.
This is what I said and what my discussion continued to be about:
“I find it interesting that both our Zimbabwean friends, Mqo and Samaita did not see any racial undertone. Where some of our local commentators see the racial tone as an objective reading of the language of the piece.”
I am very much saddened by your insinuation that my argument could be construed as ” either misguided, unconstitutional, racist, anti-transformation, subjective, or simply misplaced…” I consider them serious, yet not at all supported by anything I have said. That you could glean that off what I have said thus far, does not strengthen your claim to objectivity in your reading of the article.
What you fail to see is that just the mere mention of “undertone” moves into subjectivity and this is supported by commonly accepted definitions of the word objective.
The “facts” you quote above also do not support your argument of objectivity. Since we are talking about objective interpretation of a text, the backdrop is merely context and not somehow in itself the direct objective “facts” of the interpretation of the article itself.
Peter // Oct 29, 2008 at 4:03 pm
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The only part worth me responding to in your post is that about Advocate Ngalwana.
I continue to choose his address because it is the best one I have come across with that specifically deals with the ignorant, arrogant and racist remarks of Carole Lewis. If you find another one that deals with her remarks you can refer me thereto and I will gratefully read it.
PS: Can you elucidate on the insecurities that I have? I always welcome advice regardless.
Prof. De Vos makes a lot of sense in his argument – unfortunately he is way above the rest of the rugamaffins who fail to grasp his very sophisticated argument. Further, despite his sophistication, De Vos is also a coward because he does not analyze the matter from the stand-point of whether it is proper for judges to wade into political debates and discuss in newspapers matters that may come before their Courts for adjudication. What would happen if a litigant was to appeal a decision by one of the black judges to Lewis’s court – is she going to view the matter with a jaundiced eye or preconceived ideas simply because the appeal involves a black judge? Problem is not whether Lewis herself is a racist – it is the perception that she is that matters at this point. that is why the conventional wisdom is that judges must avoid political controversies.
All in all, well done Prof. but you tend to speak in high-faluting terms that cause most people not to understand your argument.
z // Oct 29, 2008 at 4:14 pm
“I consider them serious, yet not at all supported by anything I have said.”
……………………………………………………………………..
I did not think you will take that seriously Z. Sorry for offending you…
“If you read carefully I did not talk at all about the AA, but about people saying there is a racial undertone in the article.”
……………………………………………………………………………
In her article, Carole Lewis is having regard to the AA. If we were to remove the AA when interpreting her article then the whole discussion would be fundamentally flawed.
“What you fail to see is that just the mere mention of “undertone” moves into subjectivity..”
…………………………………………………………………………
That is incorrect. An article can reveal a certain undertone when read objectively. In fact, Carole Lewis’ article is a quintessential example of that article. The undertone will only be removed if you read her article with her subjective mind, that is, what she had in mind when she wrote it.
PS: I will look for the article where the DCJ was speaking at a function and he made mention of the remarks of Carole Lewis, albeit obiter, and showed his disapproval thereof. The article concludes by saying that despite the address by the DCJ Moseneke, the two justices walked together afterwards and they were chatting to each other…
This bloody white racist b***h must automatically be removed from the bench without being afforded any hearing.
what is she anyway? It’s about time in S.A we rise against these white racist legal professionals prophecing to be masters and champions of human rights and the constitution.
Our courts and the entire legal profession is populated with racist air-headed whites who hates and imaginalised blacks like nobody’s business.
I am grateful I was admitted (as an attorney) by two black judges in the TPD judge Mavundla and Makgoka.
The advice I got from them was we as black legal eagles still have a long way to go.
I am sure they were indirectly referring to their white racist air-headed colleques
Next year I am going back to practice. I am tired of working for whites and not only that but working with whites
Sne, you say: “To her all people who are AA beneficiaries are not qualified to do the jobs they are in but are there by virtue of AA. ”
Where on earth do you find that in what she said. Common, this is a challenge. Cut and paste the sentences here so we can see the offending bits.
Pierre, here is a question for you. I hope you can answer it. Are you aware of any of the cases (horrifying convictions and equally horrifying acquittals) or in general that Lewis talks about?
That is to say before she highlighted them? I’d be very interested to know.
Sorry that came out a bit wrong. I want to know Pierre if you are aware in general or of specific cases where there has been miscarriages of justice because the judges did not know the law?
Pierre, I have four questions for you. I know you will not avoid them because they may be difficult to answer.
1. Why do you allow contributors to use terms like “bloody white racist bitch?” Because the writer, being historically disempowered, lacks the capacity to be racist or misogynist?
2. Would a white person be permitted to just express their agreement with a black person who expresses reservations re AA? Or must they shut up in that circumstance too?
3. What about a white person who disagrees with AA, not based upon the offensive assumption of inferiority on the part of the beneficiaries, but simply because of their commitment to colour-blindness? I know you think that proponents of this “formal” equality approach are liberal idiots who fail to grasp the transformative imperatives of the Constitution. But must they also hold their tongues, lest they be suspected of hidden racism?
4. Suppose you were nominated for the bench. Would you turn it down, on the basis that white males are still heavily over-represented, and there are many, many black lawyers with as much merit as you?
Lindelani,
Being a Black person, I have been embarrassed by your postings here; but often brushed you off as one of the many angry Black people who may have been treated unfairly by white people. I know how you feel; I have scars to prove that. Although I don’t condone your vitriol, I thought I understood.
But your last posting just confirms Carol Lewis’ point. You were admitted as an attorney by two Black judges. Judging by the quality of your arguments on this blog, I am beginning to doubt the qualifications of those judges who admitted you as an attorney. That they are Black, is also cause for concern.
That they said as Black people we have a long way to go, I would interpret that to imply we are not there yet in terms of competency. Sad and embarrassing fact of admission, really.
Michael Osborne // Oct 29, 2008 at 11:01 am
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Michael, I think you are right – one has to be so bloody careful of what one says or does, so that those people who have a very low self-esteem cannot find anything you say or do offensive. If you do say something (like criticise a black person for what he/she has done that is completely wrong, people with a low self-esteem will be quick to shout ‘RACISM!” I mean, lindelani and a few (emphasis on the word ‘few’) others on this blog have from time to time called Piere’s stands ‘racist’. Piere or all people, racist?! And, then the converse, when Piere tries to criticize someone like Carrol Lewis for carelessly sying something that may be interpreted as racist, then he fuels youngsters who are clearly racist like lindelani et al (constantly cursing those ‘Xhosa bastards’ ['bustards' - one of the ways in which the clod spells 'bastards'] to aggravate matters even further – calling Carrol Lwis a ‘white bitch’. … And then he has the pomp and guts to boast that he has been admitted as an attorney by two black judges. When guys as stupid as that get admitted into the legal fraternity (I’m not a sexist – just tradition is so hard to shrug off), it does question the competence of the teachers who taught them law, and of the judges that admitted them. But, a black guy implying that black teachers and judges are incompetent (not that I say they are! – just reasoning behind the lines), that is not a problem. But if a white guy said or bimplied that, then he (or she) is racist.
While I agree Carrol Lewis should have been more careful about the way she formulated her arguments – one should not lose sight of the fact that in latter years many incompetent judges and magistrates have been allowed to ascend the bench, and it does not matter whether they are black, brown, or white. I think I have dealt with this extensively in another blog below where Lewis’ speech was tackled, and I am not going to repeat everything here. But the real problem lies with the JSC (and the Magistrates Commission) not really paying attention to merit before they recommend someone for appointment. And the mere fact that nowadays more black folk than white folk, and more female folk than male folk get appointed, does not mean that when they (or their respective appointments) are criticized, on whatever ground and in whatever forum, the critique should be regarded as racist or sexist.
It’s all subtle racism. white people are good at it.
I have mentioned before that racism will always be with us no matter what…This particular post has turned out to include plenty racial debate, just showing that racism is alive and doing damn well for itself….It is keeping its sharp edge and is continuously used to hurt, insult and snub at others. Seeing that everyone just cannot get away from the “ooomph” that racism gives, I thought I’ll share an email i received today:
I have been wondering about why Whites are racists, and no other race is.
Proud to be White Michael Richards makes his point…
Michael Richards better known as Kramer from TVs Seinfeld does make a good argument.
This was his defence speech in court after making racial comments in his comedy act. He makes some very interesting points…
Someone finally said it… How many are actually paying attention to this?
You pass me on the street and sneer in my direction. You call me ‘White boy,’ ‘Cracker,’
But when I call you, Nigger, Kike, Towel head, Sand-nigger, Camel Jockey, Beaner, Gook, or Chink … You call me a racist.
You say that whites commit a lot of violence against you… so why are the ghettos the most dangerous places to live?
You have the United Negro College Fund. You have Martin Luther King Day.
You have Black History Month. You have Cesar Chavez Day. You have Yom Hashoah. You have Ma’uled Al-Nabi. You have the NAACP. You have BET… If
we had WET (White Entertainment Television), we’d be racists.
If we had a White Pride Day, you would call us racists.
If we had White History month, we’d be racists.
If we had any organization for only whites to ‘advance’ OUR, lives we’d be racists.
We have a Hispanic Chamber of Commerce, a Black Chamber of Commerce, and then we just have the plain Chamber of Commerce. Wonder who pays for that??
A white woman could not be in the Miss Black American pageant, but any colour can be in the Miss America pageant.
If we had a college fund that only gave white students scholarships… You know we’d be racists.
There are over 60 openly proclaimed Black Colleges in the US.
Yet if there were ‘White colleges’ That would be a racist college.
In the Million Man March, you believed that you were marching for your race and rights.
If we marched for our race and rights, you would call us racists.
You are proud to be black, brown, yellow and orange, and you’re not afraid to announce it.
But when we announce our white pride, you call us racists.
You rob us, carjack us, and shoot at us. But, when a white police officer shoots a black gang member or beats up a black drug-dealer running from the law and posing a threat to society, you call him a racist.
I am proud… But you call me a racist.
Why is it that only whites can be racists??
There is nothing improper about this e-mail. Let’s see which of you are proud enough to send it on. I sadly don’t think many will. That’s why we have lost most of OUR RIGHTS in this country. We won’t stand up for ourselves!
BE PROUD TO BE WHITE!
It’s not a crime yet … but getting real close!
Sne // Oct 29, 2008 at 3:30 pm
Hey, Sne. I owe you one heck of a favour for that geography lesson. Yowie, I coulda got caught with my pants down if someone asked me a question on Africa and international stuff. And this Panama Canal story. Now that’s news to me. I thought Panama was some kind of headgear.
You know, y’all down there in Africa. I had no idea how much you guys knew. Sne, I think I will need a policy advisor on international relations and you might just be the girl for me. And if you’re lucky and are just the right size you won’t need to pack a wardrobe – just help yourself.
You ask about George W. That old boy is just so stupid he don’t know how to cheat. But don’t quote me on that til after the election.
As for Capt McCain. Well, I’m staying on board til the ship gets into port. Then I’m shoving HIM overboard.
@ Palin
Sne is a GUY, not a man!
Should have read;
man-woman
Oh Retsrov, thanks for the memories.
You know, when I was a little girl on my grand daddy’s knee I used to love reciting that poem with him.
As I always say, ‘God bless America (but only the white bits on the flag)’
See the urban legends website below:
http://www.snopes.com/politics/soapbox/proudwhite.asp
Sorry, Sne
Sorry, Mqo
I just get SO confused with all these people on Pierre’s blog. Everyone thinks everyone else is a woman or a man or a Xhosa (what IS that, man?) Then someone else comes up and corrects them and I just plain lose track of who is what. I always thought Sne was a man but then thought I read the opposite.
Well, now I know. Thanks, honey. (You ARE a woman aren’t you, Mqo? I can tell from the way you got confused like me over man, woman and guy! Don’t worry, we all have a bad hair day.)
Sne // Oct 29, 2008 at 4:14 pm
The only part worth me responding to in your post is that about Advocate Ngalwana.
I continue to choose his address because it is the best one I have come across with that specifically deals with the ignorant, arrogant and racist remarks of Carole Lewis. If you find another one that deals with her remarks you can refer me thereto and I will gratefully read it.
PS: Can you elucidate on the insecurities that I have? I always welcome advice regardless.
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Your insecurities manifest themself in automatically labelling white people whose arguments you do not agree with, racist. You will need an expensive professional to breakdown what those insecurities entail. No doubt there is a great deal of unresolved (and understandable) anger at white people, as well as fear of inadequacy/inferiority arising from the subjugation of your ancestors by whites. I think these will resolve given time and more interaction with the dreaded other – witness the Zimbabweans on this board who have a 10 year headstart with these issues.
I do not believe that black people are inferior in any way.
Re the young Adv. Ngawala, I am interested in his career trajectory. As pension funds adjudicator he certainly rattled some establishment cages most impressively, but also charged around like a bull in a china shop and a number of his judgements are now having to be overturned because he did not apply his mind properly. He did seem to enjoy the limelight, and I am sure he will try stay there as he moves forward. I hope the lights do not melt his wings (see Hlope). There is a lot of merit in being a good honest humble modest hard working professional rather than trying to be a rock star all the time. (altho Madiba did say that we shouldn’t hide our fire under a bush – on the other hand…..)
It is depressing that discussion of the merits or otherwise of Judge Lewis’s observations is subordinated to racially knee-jerk rants. Shows we are a sick society; unable to deal with the real issues we have to confront if we are ever to move forward.
@ Brookes
My sentiments exactly.
The advantage we have as Zimbabweans is that we have seen BRILLIANT black judges and USELESS black judges. It is easy for us to see the difference without resorting to COLOUR. One of the worst things we can ever do as a race is to defend the bad among us on the grounds of race. We breed mediocrity that in the end defeats us. Judges are just lawyers. As much as there are brilliant black lawyers, there are many who are USELESS. Hard to swallow for some but frankly, no one needs poor judges. Those appointed through Transformation must be willing to learn to become BETTER judges. Some assume they were appointed fully able to judge! It takes a long time, effort and dilligence to reverse years of discrimination!
It is no lie that most black lawyers do not receive instructions to handle complex commercial transactions. How many RICH black people have black lawyers in SA? Black doctors?
Peter,
You have convinced yourself beyond persuasion that the Youth League is corrupt,
This exudes collosal irrationality which defines the poor content cacaphonous discourse. I suggest that we not quickly disappear in a thick forest of unreasoned conclusions. You need to nestle your proposition on facts. You are such an righteous spokesperson of the adults of our nation. People who partake in this Blog, I suppose, are not so gullible as to swallow your views as absolute truth.
I must indicate that maturity is not synonimous with seeying eye to eye on every issue, all the time. We must engage robustly and learn from one another.
The Youth League did not have any bottom barring activity. You are see one man devastated and unhappy with a democratic elective process(the election of Malema as President of ANCYL) and exposing his bottom to express his disgust; an act which was condemned in the strongest terms by the ANC and ANCYL alike.
The ANCYL leadership is not corrupt. I and so many in the YL do not enjoy the opulence depicted in your contribution. We are respecful, mature and thoughful young leaders who are not strangers to collegial robust polemical discourse within our ranks.
We respect the viewpoints of the populace and perpectives they assert. I elected to partake in dialogue in this Blog precisely because I want to learn from your intellectual treasure to replenish the organisation and at times share some points we hold.
I am a legal expert who profoundly respects, Prof. De Vos and other pre-eminent contributors in the Blog and hope that this would be a gainful experience.
I hope you will eschew strong attitude of brushing the collective If Malema uttered a regrettable statement such as the infamous : we will kill and die for Zuma”. It is easy to conclude that it was a position of all of us. The ANCYL accepted that this were wisely chosen words. Malema committed himself not to employ such language publicly. It is a closed chapter.
I can kill for this blog does not mean I am a potential murder. It is a metaphorical expression that I profoundly support this blog and enjoy its subsistence. I can kill for this girl, means I adore her deeply. We should not be carried away in the literal grammatical denotation of words. This matter was blown out of proportion.
Anyway, I would have cherished to read your reaction on my simple views on the Lewis speech.
She(Lewis) raised pertinent issues regarding the transformation of the Judiciary. The only problematic equation is her lopsided viewpoint that post democratic appointment were heavily interspersed with overlooking merit, skill and experience as direct desire to implement a constitutional imperative of representativity. I do not agree with the proposition that incompetence emanates from the Blacks. There was a nuanced articulation of this point in her text.
She seemed to be representing senior white advocates and judges who are overlooked in appointments in recent times on the altar of AA.
My view is AA in an inevitable inherent ingridient of the transformative project. AA does not presuppose appointment of an incompetent person. You must meet the agreed standards. In the Standards you may not say that to be the Judge President, you must have been a sitting Judge for 20 yrs as that would constitute systematic exclusion of africans, indians and coloureds as since the inception of western-type court in Cape, whites were at the helm. We need to re-engineer an inclusive judiciary to deepen and defend our nascent constitutional democracy. This is my point. I do not even suggest that she is a racist. Her speech exhibits resentment with JSC which is dominated by politicians causing judges to pay allegiance to politicians. In this regards, I argue that such judges would be disloyal to the Oath for the Judiciary( I am beggining to think that the Oath is a meer formality!).
And the political fealty is suggested on the AA appointees. This is quite unconvincing from a Judge ! (SCA!)
She has a point that there must be training for Judges.
Should this only happen for sitting judges or legal practitioners must be entilted to enrol for such training? There are certain judgements that are linguistically fuddled and I suggest that in some instances this is infuenced by cultural limitations.
As South Africans, we cannot support the appointment of incompetent people. But I take issue with the suggestion that attorneys and academicians are not necessarily equipped to assume the role of Judge in the High Court system. I truly think that is a fallacy. Being a judges depends on the quality of appreciating facts and applying the law and embracing the values underpinning the Constitution.
Academics are used to rigourous discourse and involved research, thus easily adaptable to intricacies of the bench, if any.
The only difference between a practioner and a pure academic is that the academic eruditely theorises on the law and the practitioner vocalised the law in live issues in gthe court. On the issue of jurisprudential presence of the individual, any serious and determined legal student, scholar, judge, attorney, layperson can prevail.
Peter, I am short-sighted, I wonder if you give me your Gucci, I would ever put it on and function well.
It is only during this time that I can find more time to engage. Tommorow I can engage you around 11:00AM
Regards,
Kramer should ask himself WHY there was Martin Luther King in the first place Restrov and there you will find the answers!
Stalin // Oct 30, 2008 at 6:40 am
Can’t everyone be proud of who they are? Why do we have to bash people because they are different?
Yes there was inequality, oppression and discrimination in the past, and in many (but not all!) instances, still is today. That doesn’t make ongoing discrimination and oppression right – whatever you dress it up as.
AA is a good thing, when it is implemented well. But there has to be some point in time where the inequities have been redressed and where everyone competes on an equal footing. Additionally, it makes no sense to appoint someone based purely on racial quotas, without consideration to merit, ability and potential.
Z, Brookes and Retsrov,
Sorry for turning this discussion on Carole Lewis into a racist one. My intention was merely to point out my support for Prof Pierre’s opinion that her remarks had a racist undertone, or Mouse’s opinion that her words could be construed to have a racist undertone due to the rather not careful words she chose to use. It turned out that I also did not use words which excluded racism and thereby spoiling a good debate; I sincerely apologies…
Wessel,
What you are asking of me is not possible, given the context. You are asking me to copy and paste those aspects of her remarks which support my argument as you have quoted it above. I argued that based on the implications or insinuations of her remarks read in totality or holistically. In order to come to the same conclusion as me, you do not have to see a certain part of her remarks but read them holistically. I further agree with Ishmael Malale who said that; “She seemed to be representing senior white advocates and judges who are overlooked in appointments in recent times on the altar of AA.”
Sarah Palin,
As Mqo has correctly pointed out, I am indeed a man or a guy. I am ALSO a XHOSA; Time for another lesson since you revealed that you do not know what that means. I’ll try to keep it short…
A Xhosa is someone who forms part of one of the racial groups in South Africa. South Africa comprises many racial groups who speak different languages. Xhosas speak Xhosa as their language. Xhosa (language) is one of the eleven (11) official languages in South Africa as stated in the Constitution of the Republic of South Africa, 1996 which was signed into law by Nelson Mandela at Sharpeville (the place on which people (mostly under the leadership of Robert Sobukhwe) burned their passes as a form of protest against the then Apartheid government which obligated them to carry such passes when travelling in public. I will stop here for now in order not to obfuscate you…
Peter,
I do not feel any resentment for white people. I am only 23 (twenty-three) this year and I never experienced (direct) racism from white people. Though I have read a lot of history books about our country I have not felt any resentment for whites. The Deputy-Director of the Legal Aid Clinic in which I work is white and the Director is also white. In fact there are more white people with whom I work than black.
Next year I will be joining Cliffe Dekker Hofmeyr Inc., a predominently white law firm. I have already made friends with one of the candidate attorneys there who is white when we were there to be introduced to staff members this in August. Last year I went to Bulgaria in Eastern Europe with another fellow student to represent our varsity there and I made friends with whites, both male and female.
In the premises, the insecurities and resentment that you are talking about is not part of my life. But, like I said, I will welcome again any other thing that you have noticed about me which you think will not make me a better person…
Ishmael – many thanks for your long and reasoned response. I sense that we do not have a big difference of opinion on this matter. The YL would do better with more of your flavour of discourse.
We can lock horns later on more substantive issues I am sure eg Zuma. Now I need to do some work.
Best regards
Stalin // Oct 30, 2008 at 6:40 am
Stalin,
I have no idea of what your are trying to say / suggest. Please explain your thoughts.
Michael, what hard questions you ask! My response:
1. I have expressed my severe disapproval of such comments and think they exude prejudice and narrow mindedness. But I have decided not to censor comments on this Blog unless they incite harm.
2.No, I think one can have a serious discussion on AA and that whites can and must take part in such a debate. But HOW one engages is very important. To say, for example, that in the name of AA some very bad black judges were appointed could be part of such a debate. To link racial based AA to declining standards and to argue for and end to AA to uphold merit, is however problematic because it perpetuates the racial narratives I have spoken about.
3. I am happy to have an argument with a person about “colour-blindness”, but would be rather skeptical of such an argument for obvious reasons as I think inherent in such an argument are assumptions about our society and race that are deeply problematic.
4. If I am nominated to the bench or applies for a promotion and a suitably qualified black candidate is also in the running, I think that candidate rather than myself should get the job. But “suitably qualified” cannot solely be determined by race but also by other factors such as knowledge, experience and – for the bench – support for the values of human dignity, equality and freedom and respect for diversity required by our Constitution. My greatest problem with the appointment of some judges after 1994 is it is not apparent that they always share these values.
do not share these values.
2. Would a white person be permitted to just express their agreement with a black person who expresses reservations re AA? Or must they shut up in that circumstance too?
3. What about a white person who disagrees with AA, not based upon the offensive assumption of inferiority on the part of the beneficiaries, but simply because of their commitment to colour-blindness? I know you think that proponents of this “formal” equality approach are liberal idiots who fail to grasp the transformative imperatives of the Constitution. But must they also hold their tongues, lest they be suspected of hidden racism?
4. Suppose you were nominated for the bench. Would you turn it down, on the basis that white males are still heavily over-represented, and there are many, many black lawyers with as much merit as you?
Sne
Thanks! You are definitely gunning for that post as my international advisor, dude. I’ll add you to my shortlist. I’ve already got some guy called Tony Blair who claims to have lots of experience and then there’s someone everyone tells me is real famous but I never heard of him – Nelson Man something or other. But top of my list is this real expert on international relations – Bob Muggaby. Jeez, so many names to remember for one little gal!
Peter // Oct 29, 2008 at 9:32 pm
Peter,
Sne is one of the most peaceful level and clear headed people on this blog. And just by the way if you havnt realised it yet, he has a dry sense of humour, nevertheless he has a sensa humour. Why is it that you attack Sne personally? The impression you give is that you are trying to channel your own insecurities and make them someone elses. (go check again Oct 15, 2008 – you might be the one with racial self-esteem issues) Sne does not show any signs of inadequacy or inferiority. He is racially proud and I have plenty respect for this upcoming young man. He will become a big fish.
Of all the debates I’ve read on this blog this is the saddest.
Linelani has exposed himself to be a racist of the worst kind. I am glad he will leave Standard Bank as I would have closed my account so as not to assist him maintain his lifestlye with such disgusting views and fund his writing such nonsense.
Lewis JA made a bad move. She spoke without thinkin of the posible consequences. We have a number of fault lines in SA and everyone must use their freedeom of expression wisely. This INCLUDES Mr Maseko!
I have not read all the posts, I feel I’ve read enough to not have much faith in the intellect of some of the bloggers. I also feel that if people have such low views of the judiciary and other people entrusted to promote and protect the law; its principles and the rule of law should rather leave the profession and do something entirely different. Is that not better than to corrupt it from the inside with views that run counter Constitution and the ideals of the legal profession? Maybe I’m just blinded by hope and faith.
Now may we please have a civiliised debate anout the issues raised and how Lewis JA could have put her views across without racist undertones.
Pierre, you say to argue that “in the name of AA some very bad black judges were appointed” could be a legitimate part of the debate. Please indicate where in the Lewis JA speech you think she went further than that. Please also indicate where in her speech you think she said that AA should not apply to judicial appointments.
There seems little point in this debate unless we are clear on what Lewis JA actually said.
could be part of such a debate
Restrov
Ditto regarding Sne.
Peter
Sne has been able to even say good things about Afrikaner leaders of the 20th century, to the ire of some. He also generally avoids ad hominem or emotional arguments.
Sne
In spite of our spat I have a lot of respect for you.
Ziningi Mqaba,
You must be Xhosa, definately I am sure.
Then your comments don’t spike any element of surprise
Sne,
congratulations! on your offer.
Cliffe Dekker? White firm?
You will do your rotations within all their divisions, which is good!
Then chances are you won’t be retained, if they do you will be pushed to do MVA or Labour law, how “nice”?
I don’t see you doing specialised finance, structured finance, banking, mergers and acquisition
Big firms place black candidates in some useless divisions and place white candidates within valuable divisions.
I am generalising of course, there are exceptions
good luck and all the best with your white focks, go suck them
when are we as blacks going to run big firms wholly owned by blacka that will compete in that scale?
Do you guys know Majavu, he’s the attorney for PSL and SAFA.
I dare you to go to his website http://www.majavuattorneys.co.za click on “about us” scroll down to “ownership” he maintains that his firm is 100% black owned and will at all material times be wholly black owned.
i like that
Lindelani, my brother, since your identity is out in the open, you need to be very careful about your postings here which may be regarded as contempt of court/judiciary – like insulting a sitting judge. Remember that you are an officer of the court and for your name to remain in the roll of attorneys you must always be a fit and proper person. Your postings may be far from justifying striking your name off the roll but may be enough for the the Law Society to summon you to a disciplinary enquiry for misconduct or to closely monitor your conduct and utterances going forward. At such a tender age of your career, I don’t think that you need such a scrutiny of your conduct. Even if no action is taken against you now, your calling Lewis JA a white b… may come back to haunt you 20 years down the line when the JSC is interviewing you for…!
Lindelani
Yes, I am umXhosa.
It took you the whole day to figure that out; didn’t it? You must be extremely exhausted. I pity your clients (and your employer).
Your comments have just made me rest my case.
Ziningi,
good.
Restrov, Sarah Palin and Z,
Thanks to you too (three
). I also have respect for you too Z and Peter and that is precisely why I had to apologise to you for the ‘you know what’.
Lindelani,
I assure you that I would really want to respond to your post about white firms but unfortunately it is you who has posted it and it carries with it the same racist rhetoric like your countless other posts. However, if a single individual were to parrot or re-iterate what you are saying then I will respond directly to that individual but definately not to you for obvious reasons…
Michael, I have answered your first point extensively already. On the second point, Lewis has said: “… race must cease to be the criteria for appointment by the JSC” and “…new appointments [must be] made only because of skill and experience and not solely because of race…” “Cease to be” I think means: “stop”.
Pierre, are you going to answer my question? It’s not as difficult as Michael’s.
Hallo prof, Sne, Bongs, Mouse ect. since we all acknowledge our right to express our views and to criticise the people who attacks others who are different than ourselves based on race, gender, language and cultural attributes.
In the light of which I would like to tell mr Maseko that I do not like you at all you son of a bitch.
Sne, thanks for your answer.
You say:
“I argued that based on the implications or insinuations of her remarks read in totality or holistically.”
OK fine.
But, can you give us the causal nexus between her words and the implications that its racist. I like to understand how what she said got you to your point of view.
Also with respect to her ‘insinuations’. Are there any specific insinuations of is the whole piece read as a whole an insinuation? Even so what is the nature of the insinuation and what in what she said supports this? There must some things for us to hold onto surely?
My submission is that there is none, and its entirely unfairly coloured (excuse the pun) by the context.
That context being:
Our historical experience of racial discrimination of whites against blacks;
The fact that she is white;
Understandable feelings of hurt and humiliation and anger;
And in some cases (I’m not saying its true in your case) lingering feelings of inferiority.
Wessel,
To be honest with you, the reason why I referred you to the entire article is because I am lazy to copy and paste those aspects I considered to have a racist undertone. However, this lazyness can be excused because Prof has provided you with enough to comprehend what I meant by the racist undertone. In fact, I was supporting his view that the remarks had a racist undertone. That notwithstanding, I still have a duty to refer you to the parts I am that have the racist undertone but I am lazy to do that now. Hopefully, I will do so before I leave for Cape Town today…
Restrov u are slow. The reasons that there was martin luther king, black history,hispanic day and so forth was because certain races were despised and dehumanised hence the civil rights movements and black consciousness. Being black and proud was a way of keeping sane in the surrounding hopelessness created by white supremacy governments of that time. So u must not be like Kramer and take things out of context just for the sake of being emotional and argumentative, being a lawyer and all that may be hard. So to be white and proud is not wrong, it is really stating the obvious, white pride and influence needs no marketing, it is there for all to see from India to Ethiopia.
I am always amazed at people demanding competence skill and experience from a generation of people who deliberately given inferior education. Biblical studies and woodwork, even malema failed woodwork. I often look at my mother a highly intelligent woman and wonder, had she been given just half of the education i got where she would be now? But it’s ok, we must forgiue and forget we are told
Prof , can you write a letter and conjure all bloggers to desist from racially loaded remarks which will cause flight of true debaters from this Blog.
Friend, we are truly allergic to insults. What is a”son of a bitch?.
Bongs, you have asserted a profound advise to Maseko and a hope that he would take heed of your wise words. I don’t want to believe that he is racist. He perhaps wants just to provoke some bloggers and slided far away.
Maseko, you certainly have brains could you painstakingly digest the views you assert before you commit rhem to writing. We are not all gifted to write ex tempore. Desist from racially charged comments.
There is one champion of white racism please fellow human being let us return to the centre-stage of rational collegial debate.
We are legal experts that must prove our worth in the den of great debates that will serve to build our country and the world. Thousands of people are observing our discource and it reflects on us.
Prof. before we could call for cessation of AA, we must reflect the demographic matrix of the country. We are just about to be there in my view. In seven years time we may not need this in the judiciary. TIme will tell!
Peter, I deeply appreciate you response. We shall meet.
All of you may not realise how you are contributing to the generation of thought, especially its sanctity.
Regards,
Wessel, the one case that has made headlines was the case in which the conviction of an accused by Judge President Kgomo was set aside by the SCA because he had acted in a way that seemed biased and created the appearance that he had made up his mind about the guilt of the accused before hearing all the evidence (but this was not based on ignorance of the law). Lawyers and judges mutter about this privately but I have never been told of a specific case – it is usually stated in general terms. That said, many lawyers and judges argue that the worst offenders are those judges who used to be academics (like Judges Lewis and Hlophe) before appointed to the High Court without the necessary court experience, but once again no specific examples have come to my attention.
Pierre, I was starting to wonder whether we read the same speech.
Lewis JA says “race must cease to be the criteria for appointment by the JSC.”
Note, she does not say race must cease to be A criteria.
Only that it not be THE criteria.
(This is not-picking. Words are important to our trade.)
Also, she says race must not be the SOLE criteria. Who could disagree with that?
It seems to me that you have been so concerned with the possible impact of the words that you have not paid enough attention to the words themselves..
Stalin,
I asked you to explain yourself, next thing you call me slow and argumentative…what’s with you? You seem very bitter and anti-white. Do you blame “certain peoples” inferior education on whites? Isn’t it the responsibility of the elders of a group of peoples to educate their young? Some groups just have to blame others for their own failure to progress. Some groups cant help, but to blame other groups for their own inferiority. Replace your mindset with one wanting to be progressive.
Pierre,
I only know of one high court judgement a few years ago in the Eastern Cape Local Division. The Judge was Nono Gozo, who refused an application for default judgement in a wrongful death case. The sole basis for her judgement was the fact that the criminal case (the defendants were also accused of murder/culpable homicide) were not yet finalised. She stated that the Plaintif’s application for default judgement was premature and that she can only consider it once the crminal case was finalised! The case was reported, but unfortunately I cannot remember the name of the parties (they were white). Her judgment was overturned on appeal.
I remember back then when the case was reported there was also a lot of discussion amongst the legal fraternity about this very issue that Judge Lewis has raised. The case of Judge Gozo always came up in the discussion as an example of what could happen if race is the only determining factor.
Dear Sne:
When you do respond to Wessel, please also consider the challenge I have directed at Pierre re Lewis JA’s remarks.
I told Pierre that I saw nothing in her words saying the there is no place for AA in judicial appointments.
She says that race should not be the “sole” factor in selecting a judge — not that race may never be taken into account.
Michael
Restrov, it’s no use talking to u when you are not willing to listen. Ask a few blacks about life growing in south africa, read a few books on apartheid laws and then maybe u will get my drift. Why is it that you wont let a black talk about the pains and consequences of apartheid without accusing him of being backward or not progressive?
Stalin,
I am here on this blog, to really get to know people such as yourself and others. I am here to learn and to listen. I’ve had my fair share of hope and disillusionment in OUR country, which I never asked for or wanted. Thing is….you and I need to get get to know each other properly (and by that I mean types like you and types like me) so that our children, one day, can know who they are and where they come from, and all be proud of who they are and where they are going. This is not a fight about the past anymore. It is a fight for OUR childrens futures in this country of OURS.
I do hope both Sne and Pierre is not going to forget to enlighten us as to how they got to the conclusions they have re Lewis.
Wessel, I hope so too, but would not count on it.
I get the impression that a great deal of the negative reaction to Lewis JA was not so much to what she actually said, but a discerned “undertone.” The beauty of this technique is that one can project onto Lewis JA’s words whatever meaning you desire or expect, and then use that constructed meaning as the basis for one’s critique.
Whenever reservations are expressed about the degree (by which I mean what weight is given to race in decision making), and manner of implementation of AA, critics frame their criticism as if the speaker was saying that no AA is ever justified, anywhere.
In the great AA debate of last year, I recall Pierre and others insisting that UCT Prof Benatar was arguing that AA had no place whatsoever in any circumstances. In fact, it was clear that he was saying only that it was being improperly implemented.
The all or nothing approach enable people like Pierre to set up a straw man (person), that is very easily knocked down. I say that because, clearly, anyone who really believes that AA is always and everyone wrong either really is a racist, or is so far out of touch with South African reality that their views cannot be taken seriously
Michael, I believe you are wrong both about the principle and about the facts. In his writing at the time and again in a debate I had with him at UWC, Benetar explicitly made the argument that AA was wrong on ethical grounds, period. I took issue with that argument which was not a straw argument at all.
My argument about the comments of Lewis was never based on the assumption that she called for a complete end to AA. I took issue especially with her remarks that “the time has come to accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that … new appointments are made only because of skill and experience and not solely because of race”. This phrase suggests she thinks that the bench has been sufficiently transformed regarding race and that it is not necessary to focus on race any more, or that one should not focus on it in any way if it is going to lead to less meritorious appointments. I was not focusing on the argument that AA must stop, but on the suggestion that you get two kinds of appointments: those made on merit and those made because of race, the latter always being inferior appointments. My argument has consistently been that contrasting merit with race – AS LEWIS CLEARLY DID – plays into all the racial stereotypes (blacks are inferior, whites have merit) that forms part of the deeply ingrained and arrogant cultural and racial assumptions shared by many white people in SA and elsewhere. That is why, when a black person is appointed to an organisation dominated by whites, they often report how they are “watched” and “checked up on” to see if they meet the so called white standard – no matter how brilliant they are in their own rights. Ask any black person who has been in such a position and they will tell you all about it. Being white you might not see this because you are part of the dominant white culture which takes its own rules and values as so neutral and normal that they are invisible. In such a world, appointments on “merit” are really appointments of whites and the few blacks who pretend to be white and can “fit in”. “Yes, we would love to have black colleagues but they must have merit” is often code for: “yes we would love to have black colleagues but they better behave like us and better not make us think about our unexamined prejudices and assumptions about the world because then we will brand them as not having merit. Sela.
Pierre what is so CLEAR to you
“on the suggestion that you get two kinds of appointments: those made on merit and those made because of race, the latter always being inferior appointments.”
is not clear at all. It’s as clear as mud in fact. Smelly mud.
I challenge you again to show us where she says that or even suggests it?
She never contrasts the two (AA and merit) as either or like you do, but criticizes when race is the only criteria.
There is no reason to write a 500 word riposte. A paragraph will suffice as to how you jump to this conclusion.
Pierre, this debate has gone on for a while now, but I think it remains worth pursuing. It recurs again and again, and we tend to drop it as another story develops, but before we get to the nub of the matter.
I believe you latest remarks are helpful in that regard. It is becoming clear that at least some of our differences stem from a fundamental terminological misunderstanding.
My assumption (and apparently also that of Lewis JA), is that by definition AA entails the promotion of people with less “merit.” Indeed, if that is not what we mean by AA, I do not see why AA could be necessary at all. If it is not the case that the beneficiaries of AA have less “merit,” then the solution to the problem of historical imbalances would surely simply be to insist that all future appointments be based strictly on merit. We have gone full circle, back to “formal” equality.
Now, I know very well your response to this line of argument: That the term “merit” is itself, as you have eloquently argued several times, contested terrain. Processes of historical and ongoing exclusion are perpetrated by a discourse in which these values that are particular to dominant/white interests are arbitrarily labelled as neutrally connoting merit.
I am familiar with the vast literature on this topic. At its edges, the argument veers off into a relativistic morass, where no reasoned determinations are ever possible. (See the retreat since the 1980’s of Critical Legal Studies from the abyss of across-the-board relativism, and the realisation that some conception of “objectivity” must somehow be retrieved if anything resemble rational debate is to ne possible.)
Still, there can be no doubt that we must critique what is counted as merit, because the standard account really does legitimate exclusion. But once again, on that view, AA does not enter into the picture. Once we have displaced the existing, exclusivist criteria for what constitutes merit, we substitute with a new set of standards. We will in effect articulate a new conception of what counts as “merit.” And we apply that going forward to all new appointments.
I think the very term “affirmative action” is another noxious American import that brings more conceptual confusion that it is worth. Can we move on to addressing what is really at stake in what we have misnamed the affirmative action debate?
Wessel, I concur (see my prior posting.) But I would note that the judge may herself have contributed to the appalling confusion that clouds this debate. (That is, if she was correctly quoted in the press, which she quite possibly was not.)
In effect, she is said to have contended that race should not be the “sole” basis for appointment. But that makes little sense. So far as I know, race has never in fact been the “sole” criteria. What she meant to convey, I assume, is that race has sometimes been given too much weight, along with the many other factors taken into account by the JSC.
In that sentiment, I would wholehearted agree — while at the same time insisting that, for reasons of legitimacy, among other things, race must of course factor into judicial appointments.
“Stalin // Oct 30, 2008 at 2:32 pm
I am always amazed at people demanding competence skill and experience from a generation of people who deliberately given inferior education.”
Actually, I seem to be the only one here, taking on board Stalin’s point, that thinks our Judiciary is weathering the post-Apartheid storm relatively well. Remember that the Constitution contains provision for foreign judges which, I stand corrected but I’m sure it’s the case, was to ensure that we could appoint good black judges from other African countries. We haven’t needed to.
It’s ironic that when the old Silks talk about appalling Judges from the former years we chuckle and shake our heads. When they explain away a poor decision on the basis that the judge was a well-connected Nat, they’ve explained an entire life in those words, and when we see in the law reports of old bad lower court decisions reversed, we understand that there have always been bad judges.
Race and political affiliation were far more of criteria before than they are now. And more bad decisions were made. THAT is where my gripe with Judge Lewis lies.
Our judiciary now grapples with political issues, constitutionalising our legislative history and dealing with a far more legally active population (civil as well as criminal).
My issue is not with the standard of Judging, but with the use of Acting Judges within their own Division. It is outrageous that an Advocate can sit in her or his own High Court.
Mpho, I do not undertand your gripe. Why does the fact things were done badly pre 1994 justify doing things badly now?
I HATE WHITE PEOPLE
Lindelani
I don’t hate you.
lindelani – perhaps you should go read Legalbrief Today – esp the 31st October 2008 issue. Look what a fellow black, male attorney has to say on ths whole Lewis issue. I quote:
“Before saying anything I should point out that I am a black male attorney, who has benefitted from affirmative action.
I don’t think that the judge’s comments are necessarily racist. We must acknowledge that that there are competent black judges and incompetent white judges. Race does not determine competence: education and experience does. Let’s not deny that many black judges have received a second rate education and been denied the opportunity to gain experience. This is the heritage of Apartheid, a despicable system by any account. On a conceptual level, affirmative action is a wonderful concept. However, we must not deny that there are problems with affirmative action. Firstly, it is undeniable that affirmative action casts a shadow on all black judges (whether competent or not), because the question inevitably arises: was race the most important factor in this appointment? It allows for cheap shots. Secondly, our implementation (it does not need to be applied in this manner) of affirmative action is problematic because it may (on occasion) permit the appointment of a person who does not possess the competence for the position to be appointed over and above one who does (once again, this does not mean that blacks are incompetent and whites competent). Section 20(3)(d) of the Employment Equity Act (1998) expressly says this when it says that one may appoint a person with the capacity to acquire the ability to do the job within a reasonable period of time. In my view we should be investing in training and education rather than looking for (dangerous) short cuts to transformation.
Anonymous”
ANONYMOUSE,
THAT’S A STUDIP BLACK ATTORNEY, SO WHAT?
lindelani – Where does that leave you?
ANONYMOUSE,
IT LEAVES ME NO WHERE OTHER THAN THAT I HATE WHITE PEOPLE WITH ALLMY HEART.
I WILL MAKE SURE(IN FUTURE)THAT THEIR CHILDREN SUFFER MORE THAN WE DO
ANONYMOUSE,
HOW STUPID?
WHY IS THIS SO CALLED “BLACK ATTORNEY” DID NOT MENTIONED HIS NAME? IS HE ASHAME OF HIMSELF OR MAY BE IT’S A WHITEMAN THAT IS BEHIND (FAKING TO BE THE BLACK ATTORNEY) HOW STUPID? YOU CANNOT REFER ME TO THIS USELESS COMMENT, COZ YOU NOT EVEN SURE YOURSELF THAT THE AUTHOR IS BLACK.
I CAN SEND AN EMAIL PROPHECING TO BE A WHITE ADVOCATE OR LEWIS HERSELF
lindelani – Who asked the question “How Stupid?”? Certainly not I. I would never say that someone else, black or white is ‘stupid’, especially where his/her comments make sense. But when they don’t, … well thats another story – trick is not to be called racist when one does so in circumstances like these. Like Forest Gump has said: “As my mother used to say: ‘Stupid is as stupid does’.” For a 24 year old person, puportedly trained in law, admitted as an attorney in the High Court, to state that someone else (that makes sense in his arguments, mind you) is stupid, is a shocking episode indeed (especially for outsiders of the legal profession), especally where that 24 year old does not make any sense at all. Many other black lawyers participating in this and other blogs, and many (I would also say ‘most’) black lawyers that appear in the courts (especially my court) make more sense than you do, and they are not scared to publish their names, and no one can ever all them ‘stupid’. Surely to state that the person who made the above comment is a white lawyer (or even Lewis herself) masquerading as a black lawyer, whilst making perfect sense in his argument, makes it sound as if you accept that white lawyers are more intelligent and superior to black lawyers, which is nonsense, and only a stupid black lawyer would do such a thing. Please think before you respond with your racist trash!?
Anonymouse,
with my racist trash? what about you?
lindelani – I’ve never insulted anyone in racist terms. I challenge you to point out where I did; unless, of course, you are of the opinion that, whenever a white person differs with a black person, the white person must necessarily be a racist and his/her remarks must necessarily have been motivated by racism. But such an opnion would be just stupid, don’t you think?
YOU SHOULD ALL GET OVER YOURSELVES!!!!!!!!
AND THIS LINDELANI DUDE, WHEN I SAW YOUR SUBSEQUENT BLOGS (NOT THE FIRE STARTER, BUT THE LATTER BLOGS) I THOUGHT IT WAS A JOKE OR MAYBE SOMEONE MASQUERADING AS YOU (THE SUPPOSED PROFESSIONAL LEGAL PRACTITIONER). I AM SEVERELY DISAPPOINTED IN YOUR LEVEL OF INTELLIGENCE. YOU ARE SO IMMATURE IN YOUR CLAW BACK THAT I AM FORCED TO THINK OF YOU AS A 6 YEAR OLD BAMBINO WHO KNOWS NOTHING ABOUT CONSTRUCTIVE DEBATE. AT YOUR LEVEL, YOU ARE HEADED IN THE SAME DIRECTION AS HLOPHE, MOTATA AND ALL THE OTHER ROTTEN APPLES IN THE LEGAL PROFESSION!! QUITE A PROPHECY HA?!
LINDELANI, THIS ONE IS FOR YOU DUDE.
YOUR MERE EXISTENCE IS A TRAVESTY TO THE TENETS OF NATURAL JUSTICE.
NOW LET’S SAY TOGETHER: BOO HOO!!
Angry,
Interesting to know that you labelling Motata and Hlope rotten apples in the legal profession. Why are they rotten apples?
Last time I checked Hlope matter and Motata matters remain sub judice
or You Mr judge has already made your decision before the courts have done so? isn’t that to be construed as contempt of court? ey? Mr champion of the legal profession?
You have already made your mind that both Hlope and Motata are guilty thus rotten apples! how wonderful to hear that from the learned friend?
Lindelani, you have very strong views which you are perfectly entitled to express. Some bloggers do appreciate your viewpoint.
The only reprehensible aspect of your perspective is racist charges points and derogatory remarks directed at officers of the court and scholars.
I would like to have a discussion with you on the basis of such anger you seem to contain in your thought process.
There is not any basis to suggest that Motata and Hlope are rotten apples prior to finalisation of the matter. What we need is thorough analyses on the facts and the law applicable on the cases and engage.
We are not precluded to discuss declared facts of the cases. I do know that some judges suggest that we should not be overzealous in such effort.
regards
Anonymous
I must indicate that the reflections of the black lawyers you quoted generously missed the point. AA is a crucial weapon to build a new nation. The appointees must meet the basis requirements and demonstrate potential to contribute on the bench.
Appoitment of a black judge does not pressupose the invocation of AA tool. There are scholars with inpeccable credentials and experience as to be appointable without resort to AA.
We must acknowledge that it is unjustifiable that in a country where you have 80% blacks in the population you have a majority of judges in the crucial court, the SCA, being white. We must appreciate the need for representivity and reflection of geo-political matrix in appoitments.
I know tool well that the collateral effect of this is ignorance of whites in the current phase. The AA is not a tool which would be employed for ever. The moment the set targets are set and sytematic arrangements invoke to secure equitable access to education and opportunities are undertaken the AA must be effectively jettisoned. At this state is it disingenous to suggest that AA is irrelevant. That will perpetuate the historical imbalances which epitomise several facets of live in our society.
So the view that AA blemishes all black appointees is unjustified and parochial analysis.
Ishmael Malale,
It’s not me who suggeted that Judge President Hlope and Judge Motata are rotten apples it was Angry (one of the bloggers).
I think there’s a lack of understanding of the dostrine of sub judice s far as our justice system is concern.
One of the partners from Majavu and associates has touched on this doctrine.
I dare you to go to http://www.majavuattorneys.co.za in their home page under senior partner’s corner
thanks
I appreciate that Maseko. I will check the website briefly. I agree with you. My reflection was agreement with your angle. It Prof. Vos. I think he had taken a position on that. i have suggested that he should not go to that extent. We need to disabuse our minds of such conclusions. I will revert to the discussion after perusal of the article to which you have referred.
I am truly urging you not to attack white people and the judges personally. It clouds the good argument bites by bloggers. I feel upset when the debate degerates to low watermark.
I respect views of colleagues.
Ishmael Malale,
I think you one of the few senseable bloggers, you do knock sense into clueless minds.
“We must acknowledge that it is unjustifiable that in a country whre you have 80% blacks in the population you have a majority of judges in the crucial court, the SCA, being whites”
“I know tool that collateral effect of this is ignorance of whites in the current phase”
This ia straight to the point.
The only answer we got from the white judges (such as Lewis) is the reason for imbalances in the bench is because blacks are not competent enough
some of the blacks like that balck male attorney who posted his comment in the legal brief are saying “yes we are incompetent” and the white forks are clapping hands for him admitting same I think he’s the only incompetent black attorney.
Given the fact that the complaint has been lodged with the JSC. I would expect her to be suspended until such time the matter is heard, same thing that happened to Hlope. Guess waht? they won’t why? because she’s white.
I would also expect her statements to attract the media attention as the Hlope and Motata matters, i.e to be on front pages of the leading papers, guess what it won’t happen, why? because she’s white.
What an interesting “democratic society” we live in today. I would expect the most “objective” D.A (champions of our constitution) to refer the matter to the Human right commission, guess waht they wont coz the judge is white
wonderful isn’t?
I have traversed the article in Javavu website. I reckon there is not prohibition of rational legal debate on matters of such public interest, especially when no prejudicial material is advanced. I share the point with the learnt friend on the Motata photos. it is on the basis of those photos that society is making conclusions, as for the evidence there are glaring contradictions which havde emerged. We do not seem sensative to the effect of commentary of legal scholars on the ultimate stance of the Judge.
My view on suspension. I do not think that Hlope had to have been suspended on the basis that he is facing a compaignt. Similarly, I suggest that Lewis must not be suspended. The reason is value for money. These judges will continue to earn without any work done. They have cases which they handled which they could be dealing with in ghe meantime. This is my strongly held view.
What I deeply detest is that more whites seem comfortable to defend whites and black defend blacks. This entrenches racism and polarises our society.
Hlope is not being attached only on the recent spectacle, but on the Cape town Division fights with some white folk there. This is sad. Many whites in the Cape have come to a conclusion that a window of opportunity has come for Hlope to be dealt with. Similarly what should have sparked a robust discourse on AA has caused an effort on inpeachment. This esposes the entrenched positions we hold in the legal fraternity.
We are so divided. The partial precipitation of this is racism, paucity of transformation of institutions and the diverse ideological grounding of the judges, scholars and practitioners.
No lawyer has ever suggested that old apardheid judges must go but there is a nuanced suggestion that judges with struggle credentials must not be appointed as such a move breeds fealty to politicians.
One blogger suggests that the President had appointed more politicians. Let me say in the event we appoint academics, attorneys and advocates a majority of whom are black won’t that cause consternation? There are people who are only prepared people of their own colour as being competent and relevant for appointment. As a lawyer, iI should not see the Apppoitment of Hoexter as beinng inimical to change, similarly the appoitment of Mojapelo must be associated with AA. Competence and intellectuality does not recite in one’s ancestry or colour. Experiece may emanate from apartheid privileges. White are the first to become judges in the western court system. it is this legacy which accounts for all judgments written in English or Afrikaans in a country where the most spoken languages are largely ignored.
The transformation project will have to run deep.
Ishmael Mallale,
You continue to inspire me.
“No lawyer has ever suggested that old apartheid judges must go but there is a nuanced suggestion that judges with strugggle credentials must not be appointed as such a move breeds fealty to politicians”
I dare you bloggers to rebut this, isn’t this true.
I wonder what makes blacks to believe in whites so much the like of Sne, etc, is because they brain washed and clueless?
The inspiration from Ishmael proceeds:
“It is this legacy which accounts for all judgements wriiten in English and Afrikaans in a country where the most spoken languages are largely ignored”
Oh!!! my God !!!!! You couldn’t better than this. Exactly our concern. The problem is we have so many black-(think they elite or they think they white) attorneys who disagree with these issues contending that yes whites are right.
I dare all these black attorneys who think there’s is a unity within the legal profession to go back home and ask themselves why do we still have organisations such as the Black Lawyers Association if we are so united and there’s such fairness and justice within the legal profession?
Lindelani
Are you schizophrenic? Or are there two separate people blogging under the same name?
I’m asking because it’s difficult to believe that the person who spews out poorly written garbage like
“WHY IS THIS SO CALLED “BLACK ATTORNEY” DID NOT MENTIONED HIS NAME? IS HE ASHAME OF HIMSELF OR MAY BE IT’S A WHITEMAN THAT IS BEHIND (FAKING TO BE THE BLACK ATTORNEY) HOW STUPID? YOU CANNOT REFER ME TO THIS USELESS COMMENT, COZ YOU NOT EVEN SURE YOURSELF THAT THE AUTHOR IS BLACK.
I CAN SEND AN EMAIL PROPHECING TO BE A WHITE ADVOCATE OR LEWIS HERSELF”
can also write a para with correct grammar and spelling like this:
“I dare all these black attorneys who think there’s is a unity within the legal profession to go back home and ask themselves why do we still have organisations such as the Black Lawyers Association if we are so united and there’s such fairness and justice within the legal profession?”
As you wouldn’t be a qualified lawyer if you could only write like you in the first quote, I reckon the real Lindelani is the second writer. You just enjoy writing that crap to stir things up.
Lindelani and Ishmael
This blog looks like it’s becoming the Lindelani and Ishmael mutual appreciation blog. Glad you found each other. It is so good to hear some nice polite friendly words coming from you, Lindelani.
And yes, I know what will come next. “I dare you.”
Sarah Palin,
I have mentioned this before and i will say it again.
I intentionally dont pay attention to grammar since I have no respect for the language
Secondly, I am the only Lindelani commenting in this blog.
or Should I address you in Zulu so that you can see how perfect my drama is? I only pay attention to things like grammar, etc when i speak my language
Please don’t divert the argument from the real issues addressed by myself and Ishmael.
would you please present the feasible counter argument or shut up if you going to concern yourself with grammar
It seems that Sarah lost her American accent…
Right on cue. As predicted.
Since you have no respect for English, Lindelani, please stop using it and stick to the only language(s) you do respect. Perhaps you should also stay away from the law too, if you can’t respect that. And people of other races and tribes. In fact, just generally stay away.
Well, liefie, I’ve gone into hiding and disguise now that Barack has spoilt the party. I so much liked the sound of your country and the debates you were engaging in here that I have flown right on over and now call myself Sarie Pienaar.
I see I have good company, though, as Stalin is also here and seems to have forgotten his Russian and Libdem doesn’t sound so snooty anymore these days.
Sarie
Sarah Palin,
Who are you to tell me to stay out of the law.
You don’t own it, do you?
Now let’s focus on what we do best
“Michael Osborne // Nov 3, 2008 at 8:50 am
Mpho, I do not undertand your gripe. Why does the fact things were done badly pre 1994 justify doing things badly now?”
I suppose people could have read through your discussion with Pierre alone to see how to obsess on single words to justify your refusal to see the bigger picture, but just to make it clear to you I was saying that, all things considered, our black Judges and Magistrates are doing as well under more trying times than they did before.
That, Michael, is not a gripe. It was a compliment, silly.
“lindelani maseko // Nov 4, 2008 at 11:00 am
I would also expect her statements to attract the media attention as the Hlope and Motata matters, i.e to be on front pages of the leading papers, guess what it won’t happen, why? because she’s white.”
Yes, that’s interesting isn’t it. Because I would have thought that her being a woman was reason enough for people to try and detract from her worth. But not in this case (no Obama / Clinton rerun here!)
But there is such a huge difference even to how lawyers are treating her comments compared to the noise around Hlophe’s two racism issues. And Advocates for Transformation are full of intelligent, capable people so they are not likely to go off in a hot headed way.
I also don’t like the way that the BLA is discussed on this forum, especially in light of Hlophe’s legal challenges, because the Law Societies and the Bar Councils are not comfortable to us yet in the way that these black-encouraging organisations are.
Interesting times indeed.
Lindelani
It’s called guilt by suspicion, that’s good enough for most people. Let’s face it, innocent until proven guilty is a fiction. Look at Zuma for goodness’ sake!!
If these people (i.e. the likes of Motata and Hlophe) had any honour, they’d resign without too much prodding from external pressures as is done in some other countries even if they are not guilty. The ethos in Africa is to hold onto power no matter what. Margaret Thatcher had to resign at one point when she cost the egg farming industry their profits by stating in a public forum that some eggs can lead to salmonella poisoning when ingested, even if it turned out to be true.
I submit that this tradition of holding onto power no matter what is costing Africa any of its successes in the pursuit of democracy because it implies that public office isn’t public but for private gain. If the public that you are serving loses faith in you, then you should step down without much protest. And yes, being a judge is holding public office. The judiciary is afterall one of the 3 arms of government.
American and French revolutions tell us that no one has the divine right to rule and that their rule will only be legitimate until consented to by the governed.
If you hold public office and we question your honour, then there’s a problem. This is not to say that we should undermine formality in the democratic structures, but clearly incompetence and questionable conduct in exercising your duty of service to the public is unwanted in a young democracy such as ours.
Affirmative action is good if it’s properly run, but the quality of the judiciary as a pillar of democracy should not be sacrificed. Let’s appoint those who are competent aswell. It’s so sad that a competent black judge such as Hlophe may have done what he’s alleged to have done (trying to give him the benefit of the doubt here). And yes, I’m privy to inside information from one of his ex-classmates in university (KZN) who also worked besides him as a professor there before he moved to Transkei that he is quite competent, he’s just overly ambitious too (in case you were wondering why he became a judge at such a young age). If he loses his seat on the bench because of these allegations, he’ll really be a modern day tragic hero (black, inspired change in the judiciary, competent, but his ambition would be his downfall – can anyone say Macbeth or Gatsby??).
Angry,
I would expect Lewis to resign as well.
The Black Lawyers Association has lodge the complain against her.
She must stop holding on to power and do the honourable thing by resigning.
She must lead by example, how is that?
Lindelani
I think that Lewis’ remarks were rather vague. Your interpretation of what her remarks mean is very subjective and is borne out of insecurity where your competence is questioned on the basis of your race.
Black people are obviously very sensitive to issues such as race and all kinds of stereotypes and justifiably so, therefore it is easy to take Lewis’ remarks to mean the worst thing possible as a defence mechanism to your integrity as a competent black person (I assume you’re competent, I certainly hope you are).
As to her resigning, the constitution and legislation and legal procedure makes it deliberately difficult to remove a judge.
I think there should be a balance: she was just speaking her mind and I really don’t believe she was being racist (even if she IS internally racist, nobody [least of all an appeals judge] is so stupid as to display their political incorrectedness in public (unless they’re drunk)).
Obviously Thatcher and others alike in Western countries have set the expectations very high.
In an African context (with expectations that are a little lower) it would be asking too much of her to resign because she said something that could be interpreted in a number of ways.
As for Motata all I can say is that a picture is worth a thousand words (therefore interpretation is one-sided, all he’s trying to do is escape on technicalities).
With Hlophe, all you need do is look to the complainants in the case (the CC Justices) and his controversial history. He got away before with Oasis,
saying he got verbal permission from a deceased Minsiter, which is obviously difficult to prove.
If you had to balance Lewis’ conduct with the questionable conducts of the two above, Lewis’ resignation would not be justified in my opinion.
It would not be right to expect her to resign because of something she rightly felt strongly about.
Maybe in a country with such a history as ours we have come to be too readily abhorrent of even the faintest indication or inference of intolerance that we sometimes make a helluva situation out of a molehill.
We’ve become intolerant of those who are intolerant (even if the latter intolerance may be only faint and qualifying of a reading down to justify it, which I believe Lewis’ remarks are).
So no Lindelani, I do not believe we should expect of her to resign in her particular circumstance (sometimes judges say very inappropriate things even in their judgments, but they can’t be held responsible for this for the sake of their independence – look at the Soller case).
I believe her remarks are justifiable as her intention was to defend something worth defending. You only took it out of context. We can’t expect her to be a Margaret Thatcher.
The BLA’s complaint is therefore misplaced, it probably won’t get anywhere.
Angry,
Hlope was also defending something worth defending. The complaint against is misplaced and has failed the constitutional test.
No need for him to resign.
Motata there’s no need for him to resign before the court’s decision
Why should black judges resign? when it comes to white judges there are always justifications?
Lindelani,
The fact that Motata and Hlophe are black isn’t an issue, it’s just the incident of the matter.
This time the alleged perpetrators just happen to be black, you can’t assume that they’re in this mess because of their race
Are you saying that black judges should be exempted from the consequences of their actions just because they are black??
In any case, the CC was also defending something much more important when it went public with Hlophe’s alleged conduct; and that is the integrity, independence and protection of the judiciary.
His plea that they should have consulted him before going public is tantamount to saying that the criminal must first be consulted before his arrest. He will have an opportunity to voice his defence at the actual proceedings as Hlophe will when the JSC hears the matter (hopefully soon).
As for Motata, his disgraceful picture has been etched in the minds of most South Africans as it has been showed over and over again in the media. That surely doesn’t do much for the integrity of the judiciary in the eyes of the populace.
Whether going to the media by the CC will or won’t pass constitutional muster is yet to be determined pending the appeal, I mean, the complaint was made by the guardians and chief interpreters of the constitution afterall and they obviously don’t see it that way. Their actions in possibly violating one person’s rights is justified by the ends they were trying to achieve; namely the protection of democracy by maintaining the judiciary’s independence.
Very interesting indeed!!
We shall wait for Lewis’ hearing as well.
She’s a disgrace to the judiary at large.
lindelani – You’re a fine one to call anyone a disgrace for his/her occupation!
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