Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
On (judicial) transformation, racism, bigotry and power
Transformation of South African society in general (and the judiciary in particular) is a bit like Michael Jackson: it is very important for our culture, weird, abused and ultimately neither black nor white. Sometimes it is “Bad” and sometime more like a “Thriller”.
Reading the European papers the past few days (I am in the South of France), I have been struck by the way in which different people with different agenda’s view Jackson, who is now tragically (some would say comically) dead, in different ways. To some he was the child molester who changed race and perhaps gender. To others he was and remains the musical genius who has left an indelible mark on our culture and our musical landscape.
Similarly, “transformation” – something that is not only an ethical imperative for South Africa, but also required by our Constitution – is clearly not understood in the same way by all South Africans. Nothing brings this home more clearly than the debate about the (un)suitability of John Hlophe to head the Constitutional Court. Although calling this a debate is perhaps a bit generous seeing that the bitterness and hatred on both sides allows more for shouting and name-calling than for serious, rational, debate.
There are of course many shades of opinion on transformation, but it seems to me that people could be classified along a continuum on which at least three main categories could be identified. I caricature these positions slightly (but only slightly) for effect.
On the one extreme we have the (often patriarchal and bigoted) race-obsessed nationalist. For them transformation is about power, plain and simple – nothing else. Their view can be summarised as follows: They (by which could be meant whites, educated people, the rich, people with principles, people who we suspect think they are better than us, racists or any combination of the above) had the power and now we (by which could be meant, uneducated people, black people, people caught out stealing money or taking bribes, people who think women should stay barefoot and pregnant in the kitchen, victims of racism, the poor, or any combination of the above) want it and we are going to take that power now.
This group often feels inferior or powerless, are angry and frustrated by their own lack of honesty or ability or the underestimation (as George Bush would say) of their talents by what they see as racist whites, hurt by the bigotry of others or the changes around them that threaten the certainties of their world view or their sense of themselves. For them transformation is really about getting even or getting back at their perceived enemies. Arguing with them about the subtleties of any issue is useless because what animate them is resentment (sometimes conjured up, sometimes real) and anger and not reason and a love of justice.
I suspect many of the supporters of Judge President John Hlophe falls into this category. It matters not that Hlophe is a liar, that he has handed down anti-poor judgments, has been reprimanded by the JSC for unethical behaviour or co-owns a wine farm with one of the most notorious hanging judges of the apartheid era. What matters is that those perceived to be “the enemy” has criticised Hlophe, so they will show the bastards who is boss, come hell or high water. Transformation is thus not about social justice – it is about revenge.
On the other extreme, so it seems to me are, the whining white bigots who cannot believe that they are not in charge anymore. What such people seem to think is: They (by which could be meant, black people in general or the ANC and the government it leads in particular) have taken our power and our country and our sport and our property without deserving any of it. They have stuffed everything up and we cannot do anything about it, and we hate them for it.
This group is usually animated by a kind of racial superiority and open or sometimes more subliminal racism. They are resentful of the new South Africa, find fault with everything in it and gloats when something goes wrong or when a black person is caught doing something stupid, corrupt or criminal. They hate transformation because they realise that it threatens their privilege and power. Their power to speak, to be heard, to be listened to, to control.
For this group John Hlophe is a symbol of everything that is wrong in South Africa. A lazy and unintelligent black man was made Judge President, so they think or sometimes even say, and he stuffed up royally, but what can one expect of them. If you are white, members of this group will corner you at parties or on airplanes and will implicate you in their bigotry because they will assume you share it because you are also white. Making reasoned arguments is also not really possible when one encounters any version of this kind of person. When one protests, shouting and screaming might well ensue.
Obviously, the rest of us (of which I suspect there are quite a few) must find our place between these two extremes. Personally, I share some of the concerns of both groups – although I am probably closer to the first than the second group. I do not reject out of hand the notion that transformation is also about power. Often the big arguments centre around who retains the power to define the terms of the debate or, in a work situation, who gets to make the big decisions and according to which principles. I think when it comes to the big questions of state, the leaders of the three branches of government who must decide, should – for the moment at least – be black.
The legitimacy of these institutions and the decisions they make requires this. But there also seems an ethical dimension to this issue: For three hundred years white South Africans have called the shots, so maybe a little bit of humility is in order now. Giving up some of the power is perhaps a small price to pay for the generosity of our fellow South Africans who were oppressed for more than 300 years.
At the same time, however, I am also concerned – like the second group – about having a voice, being heard, about feeling that I have a place in this country where my ancestors has lived for over 300 years. This is not the same as wanting to be in control. It is, I think, about human dignity, about a feeling that one also counts as a human being and that one’s voice will also be heard. The race-obsessed nationalist bigots do not like this, of course, and would argue that white people should keep quiet. If they speak, what they say must immediately be discounted and discredited because it was said by a white person.
Somewhere in the middle I want to hold on to my voice without holding on to the arrogance of the stereotypical white man. The space where I feel this is most possible, is the space dealing with transformation and social justice which, I believe, are linked and have a substantive component. Because it has a substantive component decisions that are truly transformative would also advance social justice and should be made according to this substantive vision of justice and fairness.
That is why I get very, very angry when politicians lie or steal the money, when officials are corrupt or lazy, when judges fail to embody and live the values enshrined in the Constitution. That is why I speak out about it – not, I hope, to hold on to own privilege but because we all want to live in a more just and fair society, something that is impossible if heartless bigots (using transformation as a shield and a sword to hide their nefarious behaviour) steal money and act like they have internalised the moral value system of the apartheid regime.
It seems to me my place as a white South African with – I hope – a keen understanding of the injustices of the past and the way in which power still shapes our world, is to speak out about these kinds of abuses that undermine the values embodied in our Constitution and hurt the very people who are supposed to benefit from real and deep transformation. This is my space too – or so I wish to believe.
That is why I have criticised John Hlophe, why I have pointed out that he is a liar and an unethical person, and why I believe he will be a very bad appointee to our Constitutional Court. Sometimes keeping quiet is either cowardly or patronising. But when to speak and when to keep quiet is not an easy question to answer. I try to be neither a coward nor patronising without being an arrogant white whiner – but whether I always succeed is, of course, another matter.
But I do think we should speak more about these things. It is in the not saying that things fester. It is in the silence that the bigotry and hatred on both sides flourish and prosper.
