This morning I unexpectedly found myself on E-TV, once again debating Mr Paul Ngobeni. (The producers failed to inform me of Mr Ngobeni’s presence.) The topic was – once again – whether it was wise to launch a legal challenge against the Judicial Services Commission (JSC) decision not to investigate the complaints by John Hlophe and the judges of the Constitutional Court against each another.
Mr Ngobeni, predictably, argued that challenging the decision was racist. I, predictably, argued that challenging the seemingly irrational decision of the JSC was not in itself racist. This was, of course, not an argument I could ever conclusively win. Given the fact that I am white and Mr Ngobeni is black, many (but by no means all) viewers would have responded emotionally and would have supported the position of the person whose race they happen to share.
I really do not want to rehash the substantive arguments here. Most people who follow the news have made up their minds on this issue. This has become such a charged issue that it now has far less to do with logic and reason than with emotion, fear and hatred (which, can of course, also be logical).
Rather, I propose to take Mr Ngobeni’s charge seriously. After all, I always argue for reasoned and honest reflection and debate, so should I not honestly and calmly consider the possibility that Mr Ngobeni has a point? Logic, reason and the law aside, could it perhaps be that those of us who believe that the JSC erred in not conducting a full hearing where all the witnesses are cross-examined, are animated by racism?
Let us start with the strongest argument proffered by Mr Ngobeni, namely that those of us who question the legal basis of the decision by the JSC to sweep the matter under the carpet are guilty of a profound racist double-standard. We, so the argument goes, hold black people in public life to a far higher standard than we hold white people in public life. For example, why have we not made a bigger hullabaloo about magistrate Johan Herselman, who was recently found guilty of hate speech for calling Khayalethu Geleba a baboon?
It would, of course, be tempting to dismiss this argument by pointing out that the actions of an ordinary magistrate – no matter how disgusting such actions might be – are, in the bigger scheme of things, far less important for our judiciary and our constitutional state, than the actions of a Judge President and the judges of the Constitutional Court. Magistrates have no power to declare invalid the actions of the executive or the legislature, while a Judge President and the judges of the Constitutional Court do.
To my mind, this argument could be open to challenge. Most South Africans who get into contact with the legal system do so at the level of the magistracy, so the shocking racism of a magistrate could have a profound effect on the daily lives of ordinary South Africans. Should we not make a bigger stink about the actions of such a magistrate exactly because his actions will potentially affect the lives of ordinary people in a much more immediate way than the decisions of the Constitutional Court ever will?
I am therefore ready to concede that it is not unreasonable to argue that the obsessive focus by the media and commentators like myself on John Hlophe and the Constitutional Court – to the exclusion of other issues – might in part be explained by a double standard. Moreover, I have often written about the phenomenon – informed by implicit but unexamined racism – of some white people holding black people to a higher standard than they do fellow whites. In many organisations still dominated by white South Africans, new black appointees find that they have to “prove” their competence while the competence of new white staff are assumed.
It is therefore understandable that many people would be suspicious of any action which – if successful – might expose a black judge (or more than one black judge) to a finding of gross misconduct. I would therefore further concede that it might well be that some people clamouring for a full hearing of the various complaints by Hlophe and the Constitutional Court judges, are animated by racism.
However, in my opinion, Mr Ngobeni’s argument falters when he uses the above to try and discredit anyone who insists that the JSC acted unlawfully when it made its decision or anyone who wishes to see the various complaints properly dealt with on the basis that they must be racist.
First, the two judges on the JSC both voted with the minority to have a full hearing of the complaints of both Hlophe and the Constitutional Court judges. As judges, they must surely be the individuals on the JSC best placed to make a legal finding on this matter and their opinion should be accorded some weight. Both these judges happen to be black. Is it really plausible to argue that they were animated by racism?
Second, even if we agree that racism has motivated some to challenge the decision of the JSC, this does not take us any further when considering the merits of the case. If a legal decision is wrongly taken, that decision cannot miraculously become lawful because some people who point out the legal flaws in the decision happen to be animated by ulterior motives.
An example: Say a building is on fire and an employee – who wishes to harm his bosses and to knock off early so that he can go home to watch the Bafana-Bafana game on TV – alerts everyone to the fire, the ulterior motive of the employee will not change the fact that the building is on fire. If nothing is done and the employee’s alert is ignored, everyone in the building will be killed. Facts do not change because they are pointed out by someone with an ulterior purpose.
Of course, it might be argued that there might be no fire at all and the employee may have made up the story of the fire for an ulterior purpose. But to know that, it would be necessary for someone to go and check whether there is a fire or not. Similarly, there might be nothing wrong with the legality of the JSC decision (although no credible lawyer has made such an argument), but to establish this fact, it would be necessary to have the decision reviewed. To insist that the decision should be reviewed can therefore not with certainty be said to be animated by racism.
This leads us necessarily to the conclusion that those who argue that the JSC decision should not be reviewed and that anyone who expresses criticism of the decision of the JSC is racist, is attempting to stop any effort to establish the legality of the JSC decision and of getting to the truth. If one shouts “racism”, one does not have to engage with the legality of the JSC decision (or the fact that either Hlophe or the judges of the Constitutional Court lied under oath) and one need not engage with the real issues.
The allegations of racism against those who criticise the JSC decision therefore provides strong evidence that those who wish to sweep this whole saga under the carpet knows that the JSC decision cannot be defended on legal grounds and suspects that cross-examination will be potentially disastrous for the person(s) whom they support. It is tantamount to an admission that the JSC decision is indefensible – on legal grounds at least – and that the individual(s) they support lied.
A more honest argument – made by some readers of this Blog – is to admit that the JSC decision is not really defensible on legal grounds, but to argue on purely pragmatic grounds that it should not be attacked. “We know the JSC made a decision that is stupid and harmful, but more harm will be done by saying so because it will further fan the flames and destabilise the judiciary.”
I disagree with this argument, but at least it is honest. To extend my metaphor I would say: “If we do not send someone to check whether there is a fire or not and continue with our work, we might all burn to death. Rather be on the safe side. Surely we do not all want to die?”
To add one more thing: It seems to me Adv Dumisa Ntsebeza’s position on the matter is honourable. He made it clear that he had no problem with a review of the JSC decision, but resigned from FUL because he felt uncomfortable with being associated with them. He thus distinguished between motive (as he sees it) and the legal issues.
To me Pirre you are nothing but a sacarstic racist white man. Why don’t you just put issues relating to service delivery than these that irk me.
Mabitsela, any thoughts on the content of the article?
Pierre, the more pernicious form of white bigotry is the mirror image of that to which you refer. We have all seen the achievement of a black person warmly praised by a well-meaning liberal – in circumstances where exactly the same effort of his white colleague would not be thought of as even worthy of remark.
The indulgent condescension of a kind adult towards a bravely struggling child. Or, to put it another way, the soft bigotry of lowered expectations.
Of similar spirit, but even worse, is the suggestion by one of your contributors this week: That, when black men committed crime, they could in some sense be excused, because they are, after all, deeply wounded victims of apartheid. This is the “brutalisation” thesis. We dismiss blacks as sub-humans who have all but lost human agency.
The sad embrace of this loathsome victimology reflects the failure of both white and black South Africans to absorb the lessons of Steve Biko, murdered 32 years ago this week.
Prof:
Jy het meer geduld as ek. Stuur hulle almal in hulle moer!!!!
Unfortunately, South Africa is a scoiety where populist politics are the best way for parties to maintain their support base. In the ANC’s case, it could start exegeting it’s policy manifesto and the Freedom Charter to the masses, but chances are they wouldn’t respond as well as to, say, Mshini Wam’. Additionally, if the two dominant political parties (registered ones at least) started contesting socio-economic policies and so forth, the ANC has everything to lose and the DA has everything to gain. However, if the ANC can simply maintain its support base through populist rhetoric, then it will remain in power a lot longer.
Therefore academic, techincal, rational, legal and/or logical debate and critical thinking are not a top priority for the ANC, at least in its public utterances. So we have the situation where the moment there is a black person in trouble, and white people make an objection, the instant reaction is “racism”.
This, repeated often enough, will eventually influence any support base to whom the emotion (in this case, victimisation) is appealing. Put simply, it is a very undemanding yet effective strategy to keep South Africa divided along racial lines, and therefore ensure the ANC has a longer reign in power. The moment South Africans realise that, actually, MOST black people and white people (bar the lunatic fringe on both sides) actually get along pretty well when they’re around a braai, or at a sports game, or in the wworkplace; and they realise that the “other side” is NOT out to “get them” or reinstitute Apartheid or drive white people out of the country – then the ANC’s entire constituent structure will begin to crumble very rapidly.
Therefore, racism, whether perceived or even completely fabricated, is the best means of ensuring political continuity for the ANC. There will never be active political debate between the parties – this is not how the ANC retains support. There will never be admission that the indefensible is indefensible – the indefensible will simply be explained away with racism. Demands for JZ to be recharged, Shaik to go back to prison, AA to be revisted and implemented properly, Hlophe to be tried before a court, Motata to be removed as a judge – these are all the product of racists. A respected anti-Aparthied white ex-CC justice can go from an unsung liberation hero to a racist in a single speech, without the slightest examination or exegesis of the facts contained therein.
A white man can become a racist in South Africa in a heartbeat – just say the wrong thing, choose the wrong side, and you’re named and shamed. And even if you’re not in the public eye, you will be constantly grouped with the “racists”, “them”, the “sinister forces”, the “imperialists” and so forth. Just to ensure that nobody slips through the cracks.
Defense of a position is irrelevant and unnecessary, as long as attention is diverted towards racism – which ironically, judging by how often it’s pointed out, appears to have worsened since Apartheid.
Its a curiosity but is using a pseudonym on a forum like this a sign of cowardice ,not being able to come out openly and proclaim your view?For some I do indeed understand thats its to avoid victimisation in law firms etc.I would prefer it if people came out in person.
Hlophe… again.
Admittedly Prof., I am one of those who maintain that gunning for JP will have dire consequences for our judiciary and the country as a whole. I am not impressed with having a judge who has a huge cloud, make that huge clouds, over his head whilst I, as a young lawyer am expected to behave in a manner which is befitting of a fit and proper person to continue to be a member of the honourable profession, but we must be a little realistic in assessing this very volatile situation involving Hlophe. We must not make the same mistake we did when we were gunning for the now our President. Let us look at the bigger picture.
The Apartheid racism is too fresh in the South African public, the majority of which is virtually illiterate and until things change we need to let people like Zuma and Hlophe to go through the cracks FOR NOW as they are not worth it. This “luxury” of emotionally blackmailing people to get their support utilised by the ANC and a few individuals will be short-lived as more and more people get educated and can no longer rely on the speakers’ interpretation but on what they know and can discern on their own. Unfortunately, until then, Zumas, Hlophes, Motatas, Malemas, etc. will be the ones that got away.
Kevin Sifiso Malunga says:
September 11, 2009 at 20:40 pm
You do yourself no credit by having a “witch-hunting” attitude and trying to unmask who have every right to anonymity when on a internet forum. You are also adding fuel to the allegations that the position you hold is nothing more than a form of mob mentality, with no legal reasoning basis, which is essentially what the Prof is saying in his latest blog offering.
Sne says:
September 11, 2009 at 22:21 pm
I find it particularly interesting you would say that the “Zumas, Hlophes, Motatas, Malemas, etc.” will continue to get away.
PdV, your assumption that your western deduction method is more valid than the spirits of the ancestors, is by your own methods, racist ? Mzungu must go. Being born in a cow-shed does not make you a cow.
Mugabe has spoken – again.
@Big Slipper: I would submit to you that 1) a renowned freedom fighter was labelled a “buffoon” after just one phrase: “I took a shower”. 2) A veteran liberation hero was labelled a “buffoon” after just 1 decision: “Evicting white farmers from ancestral land in Zimbabwe”. If we follow these precedents, why can, Kriegler be racist?
“can’t”
Harold,Harold no need to be touchy that was a general question about blogging habits in general.Don’t throw too many insults there is now legal precedent to unsmak you See http://www.financialpost.com/news-sectors/story.html?id=1924169.No legal reasoning?Since when have fairness,the audi alteram partem rule,insufficient evidence,constitutional provisions on the jurisdiction of the JSC and realist legal philosophy become a form of mob mentality?
That site should be http://www.financialpost.com/news-sectors/story.html?id=1924169
Isn’t it interesting that the Constitutional Court, composed of 11 judges (since you attach weight to the two judges in the complaints commitee) chose not to pursue the matter?
Do you really believe there are no Black people(or maybe “clever Blacks” to quote Kriegler) who are pained by the JSC decision but understand the reasoning behind it.
What Kriegler is doing merely reinforces the notion of white people always after saving blacks. The fight by black people to live is merely a fight to assimilate into white society. To enjoy the fruits they (white people) have been harvesting for years. A fight to defeat an inferiority complex brutally enforced by a racist regime. Now can we, as black people expect a white person to tell us how wrong we are without wondering about his motives. His interests .
Whilst black people brought into the facade of a rainbow nation, white people cannot bring themselves to accept that they emerged with their loot intact (Afterall, have you ever heard of a Black person clamouring for exchange controls to be loosened?). Their rights protected.
Now they see the judiciary as the last outpost of their authority. Their last protection from these savages. A sanctuary of some sorts.
Under the guise of protecting the judiciary, judge Kriegler is taking all of us to the brink. In fact I wonder if this whole matter is not going to go the Hlophe route once again and who will be the final arbiter (CC?) should any outcome be challenged. Are we possibly going to be faced with another year of legal challenges?
By the way Prof, I don’t remember Adv Ntsebeza saying anything about being ‘ uncomfortable ‘ with FUL. This is your interpretation.
Kevin, welcome back!
There has been so much name calling and unreasoned outburst, it will be splendid to have a learned light shone on the subject.
So, would you be in the position to write a few lines motivating (what I take to be), your defense of the JSC majority?
Looking forward to it.
Typical of e.tv not to inform you that he was going to be in the studio. They are known for their modus operandi of sensational ambush journalism, which is highly unethical.
To Mabitsela, who labels your as a sarcastic racist white man, my advice is: argue the points made in the blog, don’t make puerile attacks on people you don’t know a toss about.
The Professor has clearly made an earnest effort to investigate the view that those who support the FUL suit are motivated by racism. Might I say also that he showed a fairly substantial measure of tolerance given that he – in much the same way as many others – has consistently underscored that whatever the motivation behind the review application may be, it is irrelevant to whether the suit is legally sound.
I would also say a few words about the Professor’s holdings which he outlined during the course of his latest piece. Some people may well endorse the FUl suit on the basis of some racist beliefs. That is truly unfortunate and they are almost as bad as people after the fashion of Paul Ngobeni who are so committed to irrelevance and ill temper. Further, Ngobeni is mistaken to make out that all who support the suit are animated by racism. That view, with respect, amounts to an embarrassingly gross generalisation which is rendered all the more crass in that it takes no cognisance of other reasons as to why people may think FuL is doing this country a noble service. And let me add that those reasons which Ngobeni conveniently overlooks are those which are actually relevant to the imminent application.
I will not suggest that those who have voiced their aversion to the FUL suit conduct a similar excercise to the one that the Professor did. Frankly, I do not think that many of them are up to it. It would call for objective inspection – which many of them just will not try. It would call for critical analysis – for which many richly enjoy the capacity but in this instance not the inclination. It would also call for courage – and many of them just do not have the guts to try another perspective.
Kevin, it really would promote a great deal of clarity if you would answer Michael’s question. With respect, I don’t think anyone wants to assume that you can offer only vague references to law without actually formulating a coherent defence of the JSC majority decision – I certainly don’t and would love to assume that your silence on this narrow score thus far can be attributed to you putting the final touches on a strong legal defence.
Alternatively, if you have no legal argument to offer, then make the concession as to the narrow (although overpoweringly relevant) legal score and confine your distaste to non-legal issues.
But given that you appear to support the JSC majority decision in law, to withhold either (a) a legal argument or (b) an honourable concession is unfair to your fellow bloggers – especially Michael given that he has been a very patient good sport thus far.
Leigh, I implore you to stop hassling poor Kevin in this manner. Your persistence strikes one as a racist demand that black men “explain” themselves. With respect, it is whites who are called upon first to account for the legacy of colonialism and apartheid.
Also: There are many different legal discourses besides the sterile positivism favoured by colonial jurisprudes. You may be a committed Austinian. But progressive lawyers even in the U.S. have developed an alternative discourse, Critical Race Theory, that exposes the false determinacies of liberal legalism.
I will be happy to provide references if you desire. But I suggest you start with “Black Robes, White Justice,” the text that was “borrowed” from the JP’s office before he departed on his forced leave, and as to which he circulated a note on the first day back in chambers last Monday.
Pierre,
Barney Pityana publicly accused Dennis Davis some years ago of racism. Davis is today a respected Judge. Pityana is, er, Pityana – so let’s not over react, rather it would be better to stick with the essence of this matter than get side tracked by non issues.
I would not shed a tear is JP Hlope leaves the bench, rather the opposite will be true – but the manner that the CC went about this smacks of “get him” and that is wrong if it is the case. Our institutions must not be used to get rid of people because we don’t like them.
As much as the JSC have resolved this in the weakest possible way and this leaves much to be desired, retired Judge Kriegler introduce race into his equation when he spoke patronisingly of the “Black judiciary”.
FUL were silent after the JSC finding on the Oasis matter – the difference between the JSC then and now, is that some commissioners have changed.
On another matter, when Julius Malema made comments over Zuma’s rape accuser, many people went ballistic to the extent that he was hauled before the equality court as ought to have been done. Barring the crude vs the sophisticated language, what make Malema’s comments materially worse than the judge’s Rudyard Kipling mock up – which I crudely interpret as ‘even though she wanted it, you ought to have kept it in your pants’? And why is everyone silent over that?
Pierre, stop this, you have been labelled a racist, no amount of logical argument or bleating is going to change this.
Do not waste your time defending your logical and legal arguments because other people have reduced them to emotionally charged issues, it is a waste of your intellect and your time. If anything you show symptoms of the soft bigotry mentioned by Mikhail above, who incidentally I hope to hear more from.
Really, if you were attacked by some white academic who produced the blithering arguments you have been subjected to you wouldn’t waste your time with them, you would just make a determination that the man was an ass and move on. So why bother? Is it perhaps because you have the attitude so nicely put by Mikhail above, “the indulgent condescension of a kind adult towards a bravely struggling child. Or, to put it another way, the soft bigotry of lowered expectations.”?
I don’t know about other readers of this blog but I come here to learn more about the law, I appreciate your intellectual acumen and your professionalism and am grateful that I have an opportunity to be exposed to a legal professional who is so generous with his time and intellect. I do not have the education, the resources or the luxury to ever hope to be able to sit in the rarefied atmosphere of a university and be lectured on aspects of the law, so I appreciate this forum. I don’t always agree with you, but I do appreciate you!
Mikhail, I agree completely with your first post above.
It has come as rather a shock to me to realise that I am in fact guilty of the soft bigotry that you speak of, constantly.
Of greater concern is that slowly I am being ‘turned’ by what I see and read in the media, for example Sne’s posting above, toward accepting that perhaps we ought not to be holding black south african people to the same moral and ethical standards that we expect from other western people (I don’t use the term white people because I do not believe that my views are ‘white’ values, they are western values) your “brutalisation” thesis?
My gut reaction is that this is the wrong attitude to take, but the constant onslaught and accusations of racism are difficult to shake.
What I am trying to determine now is whether this is racism, I don’t think it is although I am mindful that my bigotry is as hateful and I am appalled that it has taken me over 40 years to figure this out.
Perhaps racism is not what we should be talking about, perhaps we should be addressing bigotry. I am mindful that my morals, values and ethics are based on my western bias and education, and that my bigotry stems from this direction, a class thing perhaps?
Maggs, I think FUL did not exist at the time of Oasis.
Also, Kriegler J and Lewis JA (and Cachalia JA) were only speaking a hard truth that few have the honesty to articulate. It is this: Some spectacularly poor judicial appointment of black lawyers have been made.
This is emphatically not the fault of black lawyers. You take any virtually white lawyer who has practiced for a only few years as an attorney or advocate. Usually – but not always – he will make a very, very bad judge. If I had been appointed to the bench ten years out of law school, I would have been a very, very bad judge.
Take the last big round of affirmative action appointments to the bench. I am speaking of the Afrikaans judges put on the bench by the Nat in the 50’s, as part of the “transformation” agenda away from English speaking males that dominated the judiciary up until then.
Only a total fool would have said that the fact that many of these Afrikaaners made horrible judges was because of some flaw in Afrikaaner “race” generally. Same is true of the criticism of black judicial appoitments now. Why can’t we speak openly about this?
Michael says:
September 12, 2009 at 12:17 pm
We can speak openly about anything, if we don’t it’s only because we don’t want to. If some twit screams racism, so what?
The debate over how we transform the demographics of the judiciary, vis-a-vis doing something vs doing nothing and the pitfalls either way, is another one.
It’s hard to escape the conclusion that the standard expected from Black judges is far different from that expected from White judges – I can only speculate what would have been the reaction if it was Black judges who misquoted as did the SCA in the “generally corrupt” debacle.
Some judgments are mind boggling, at all levels of the judiciary, some as a result of bad “judgment”, some (in my opinion) as a result to playing to the international gallery.
We have to find a way of correcting that – transformation of our judiciary has to be more than demographics.
@ Maggs:
1. Maggs, perhaps you are in the fortunate position to “speak openly about anything.” I guarantee you that there are many who, for professional reasons, or cowardice, do not speak their minds.
2. Yes, indeed, the standard expected of black judges is different — but in many cases in the very opposite direction to that which you suggest. The soft bigotry of low expectations is utterly rampant. The very fact that you and much of the public are not aware of black judges saying things even more stupid than the SCA misquote proves my point; their blapses are often not even noted (except occasionally by Carmel Rickard in The Weekender.)
3. I emphasise, again (as I always must), that this is NOT, I repeat NOT, because these judges are black. Put a pilot with 5 years experience in a Jumbo. He may well crash. Put a man with five years experience on a bench. The odds are that he will be a bad judge. This is not a terribly complicated thing to understand.
4. No one dare condescend to a truly brilliant jurist like Moseneke DCH or Ngcobo J — as a few arrogant white advocates appearing before them have found to their cost. The same cannot be said of the indulgence shown by many liberals to their less talented black counterparts. They have been shoved unprepared onto the bench is a spirit of racial “transformation.”
4. Kriegler J and Cachalia J are quite right to speak openly about the disgraceful indulgence of mediocrity. More should.
Sandra says:
September 12, 2009 at 12:12 pm
I agree with you that this blog is wonderful resource for those who wish to learn more about the law, especially in that we see the law impacting more significantly, if not fundamentally, on our lives and society. But in saying that we must have regard that law is nothing if not for a particular society and what authority that society gives it and faith in those who are appointed to administered it for the benefit of those who concede to its obligations and duties to it.
I have come to the realization that this no more about the law, but actually a war taking place in our society. I’ll use a infamous Philosopher’s quote to describe it …
“This is war, but war without powder and smoke, without warlike poses, without pathos and strained limbs”
For example … Judge Kriegler indicated that he was not a politician.
http://www.mg.co.za/article/2009-09-11-kriegler-saddles-up-for-rough-ride
But he is more and more coming across as someone on a campaign. In fact he apparently at some law seminar outside Hermanus as a “last minute” guest speaker. It is so obvious that he is doing a recruiting run for support amongst the very impressionable law students attending it. Hitler also arrogantly thought that his Hitler Youth would make a formidable fight force due to their blind loyalty, but they tragically were no more than cannon fodder for the advancing American and Russian troops.
It is absolutely mind-boggling that some persist in this fallacy that this is strictly a legal matter when these serious peripheral antics are taking place.
Mikhail, your suggestion that my request for some sort of explanation from Mr Malunga amounts to a racist demand for that exposition is intriguing. A rarer species of racism then?
But I would like to say a few gentle words about your suggestion with the the accompanying note that I am rather mindful of the nature of parody. Your suggestion seems to belittle Mr Malunga in two respects. It is also guilty of an oversight.
It disparages Mr Malunga insofar as it seems to presuppose that he cannot speak out against this uncommon species of racism to which you draw attention. It also amounts to rather a thinly veiled slight on Mr Malunga’s legal skills in that you appear to intimate that either (a) he may not understand the query or (b) that he has no legal argument to proffer and that he is in need of protection so as to preclude anyone from drawing the natural inference.
Your oversight is that had any white lawyer adopted the same attitude as Mr Malunga, I would have ventured the same query in the same way.
Sandra, I must say that I look forward to more of your posts in the future.
Leigh, I must say that I have enjoyed many of your insights, as well as the “respect” you quite often articulate.
All the more am I disappointed by your dismissal of my discourse as a “parody.”
This is, with respect, quite typical of a racist’s easy dismissal of anything that a black man says, or states in defense of another black man, as some kind of jest.
I am aware that you a devoted disciple of John Austin. But it is time that you rise above his crude positivism. (So 1950’s.)
I will glady furnish a reading list.
I am not aggrieved that much of my submissions are commented on. I am fully aware that they are poorly written and riddled with bad grammar and poor word-usage. I have come to terms that I will not “compete” with many of my fellow blog contributors who certainly have the advantage of excellent and expensive schooling, coupled with the best tertiary education money can buy. I am also at peace that this divide will only result in that I will not be able to many any valuable contributions except in the capacity of a drone in the labour force this country also tremendously needs. I praise the Professor though for allowing all sorts, particularly like mine, who have unrealistic ambitions to make a difference in the intellectual department, adding our “two cents” to the discussions.
In saying that I have recently had an Epiphany of sorts which I wish to share – I do hope it has a bearing on the Professor’s post – but due to my poor schooling and the possibility that my not so fully developed cerebrum, theoretically caused by the genetic makeup of the race group I belong to, will hinder me giving a comprehensible account.
At no time will I be adverse to criticism due to the above-mentioned short-comings.
TRUTH is not a value or concept that is completely embraced by our legal system. Generic versions are mimicked or substituted in certain aspects but undoubtedly the accusatorial procedure and the minimum standard onus’ of proof we apply further undermines it. To explain this TRUTH would be almost impossible for me to explain.
- Its the TRUTH that centuries of Philosophers and Thinkers which they understood were determined to define but always eluded them. Its the one that even our Constitution cannot protect and even have printed on its hallowed pages. Its the TRUTH that is even above law and transcends above the concepts of Justice and Fairness.
The pursuit of this TRUTH is so universally elevated and superior as a pilgrimage, that we mere mortals just abstain from even attempting but recognize instantly when seen.
For example, Mr Glenister was on this pilgrimage for TRUTH and though coming short, will forever be remembered as noble, and “pure of heart” when associated with that “quest”.
Whereas, Kriegler J is using his as a means and a pilgrimage of TRUTH. To use the pilgrimage of TRUTH as a charade for a means (irrespective of what it may be) subverts and in the end debauches any justification and high-mindedness it intended to achieve.
It is this type of irreverence which results in the depressing of the values and public morality the Professor speaks of.
“I am not aggrieved that much of my submissions are NOT commented on.”
“Whereas, Kriegler J is using his as a means and NOT a pilgrimage of TRUTH.”
Apologies for all the errors ;-(
Harold, do not feel bad.
Many of my choice comments are likewise ignored by these embittered liberals.
I suspect it is because I have made it my life’s work to ferret our RACISM!
Harold I think my conclusions are in agreement with yours, what we are looking at is a mass of people expected to slot into an established western society created from western standards. From a liberal viewpoint this cannot be right or correct, of course talking practically I haven’t heard anybody proposing a solution that is not wildly ridiculous.
I am not sure if I am reading Hlope and others correctly but they appear to be alluding to this, although not very articulately or logically. I am, in principle in agreement and I too wish to see more of an African influence on our daily life and within the judiciary, but again it’s not something I want to rush into and nor do I want mediocre individuals handling the transformation.
I do not think I agree with you regarding Kriegler though, how often have we had to put up with some or other disagreeable person because we are in need of his skills, his intellect, brilliance or whatever. We do not view a Van Gogh with less pleasure knowing that he was probably a mentally unstable and unpleasant fellow? I am certainly not suggesting Kriegler has any of those qualities (mental instability or brilliance), but I don’t need to question his motives for now.
He is doing something which I believe needs to be done, and he is showing a willingness to take a lumping because of it, I am grateful that someone is.
I do not want to continue on the path the JSC has chosen, it does not feel right, it doesn’t sound right, it smacks of interference, and it feels to me that if we let this continue we are sabotaging any kind of responsible and useful transformation. I don’t see anybody else taking them on, do you?
Let us transform the judiciary, let us eradicate bigotry and racism, but let us do it responsibly and carefully and for goodness sake take out the emotionally charged issues and have a public debate about what transformation is and how we can do it.
Mikhail, I disagree with you completely, “With respect, it is whites who are called upon first to account for the legacy of colonialism and apartheid” get over it, let’s move on.
If anyone on this blog states a position, which they do and sometimes vehemently, (whatever their skin colour) is it not quite correct that those of us who do not understand the position they have taken, question it? I want logical argument not emotional hogwash. Besides you have no way of knowing Leigh’s ethnicity, never mind her skin colour, it is clear that she has had western training and values, but that’s all you have.
Most of us that come here want to understand the issue being discussed and make up our own minds, that means absorbing Pierre’s take and reading and absorbing, digesting opposing viewpoints, I have taken a stand on the JSC ruling, as has everyone else, based on what I have read here and elsewhere, I appreciate and support Pierre’s (and others) view on the matter, yet we have dissenting views which I cannot understand or support because they appear to be based on emotions and not on logic or intellectual honest (to my western mind) reasons.
Leigh’s persistence in requesting a reasoned argument (on this and other posts) is admirable, I would have given up already.
What am I missing? I do not come here to be rude, or to have someone be rude to me, I genuinely want to understand, am I at fault for not seeing something that others see? So educate me, explain it to me.
Your throwaway statement that “There are many different legal discourses besides the sterile positivism favoured by colonial jurisprudes.” is a fabulous start, so give us the required reading list, bearing in mind resource restrictions please. But give us that reasoned argument on the JSC’s ruling based on this different legal discourse and show us how it differs from the legal discourse employed here on this blog and in South African jurisprudence.
Mikhail, I will thank you kindly for noticing the ‘respect’.
I did not mean to disappoint you. Your views are certainly interesting enough – if, and with all respect, somewhat problematic.
My admittedly direct communications to Mr Malunga denote that I expect both (a) clarity of comprehension and (b) clarity of expression from him. To my mind, this ought to show that I hold him in high regard. So if a tenable definition of racism can involve an element of scorn, then surely my conduct thus far cannot properly be described as racism given that my communications have strongly suggesed rather the opposite of contempt.
I also assume that Mr Malunga can speak up for himself. He needs no agony aunt’s skirt to cower behind and with all respect of course, I doubt very much that he would thank you for lending yours.
I have never really bothered with jurisprudence. But in case you are vaguely interested, had I pursued jurisprudence I suspect I would have sought to undermine positivism.
Let me just add that it wounds me that you especially would miss the true flavour of my intentions. Please, think better of me in the days to come.
Sandra, you are not the only one who is interested in learning. I mentioned once before that I did not really care much for certain areas of law which curiously enough started to become intriguing when I encounted this blog.
Seeing some of the interchanges here on this blog I am reminded of when the Berlin Wall came down. Parts of the wall was thick concrete and well manned and patrolled, while at other spots just a basic fence but certainly difficult to get over. Those who were on the one side could go over but this was heavily controlled and restrictive in every sense. When time came came for it to come down, there wasn’t slaps and nudges to penetrate the rock hard cement and concrete, but angry and heavy blows with sledgehammers.
I am unashamed to admit that I have to have a dictionary nearby when reading many of the written contributions. For this reason I think it would be right for me to explain this parable of sorts.
The Berlin Wall represents Racism. For a while it has been understood that be eradicated and the place* that the majority have been promised (and certainly entitled to has been slow to come to fruition – “heavily controlled and restrictive”. To get pass the “Wall” you would have to pass certain (and on many occasions, exceptional) conditions to get to the other side.
The blows with the sledgehammers are the cries of frustration (and anger) of some here on the blog, who no longer wants this wall and the excuses made to prolong its existence.
I don’t think I have it in me to come up with a solution to this but I do foresee the outcome if the “becoming more and more unattainable with every passing day” solution does not appear – which will be directly opposite to the joyous emotions that is associated with the coming down of the last remnants of the Berlin Wall.
*place = Preamble of the Constitution?
White people are so used to their racist culture that they don’t even realize that they are racist.
I think black people need to provide a sort of ideological re-education system to provide white youngsters who are motivated to investigate their white cultural conditioning. It could take the place of the National service their fore-fathers rendered to the apartheid regime. Perhaps as part of the new National Youth Service programme…
White children must be made to understand what their fore-fathers did and how destructive white-normative culture is. South African is an African country after all, they must understand that the dominant culture ought to be African and not European.
How else can we black people deal with incorrect attitudes and beliefs? White people need to reconcile with the permanent fact of black majority government.How else can black people help white people realise that their culture is racist?
what is a racist in the south african context today? one who is both privileged and socialised on the basis of race by a white supremacist (racist) system. The term applies to all white people (i.e., people of European descent), regardless of class, gender, religious, cultural or sexual orientation.
Then we can perhaps destroy the duel myths of “western humanist enlightenment” and “white liberal morality”. A little harsh, yes. But you’ve always got that British passport to fall back on…
I just read the article concerning the magistrate calling the worker a baboon and without having the necessary facts at hand, does it mean that being an idiot is automatically associated with race cause i have been called an idiot so many times by my parents, peers, friends teachers of things that i did which was uh…stupid!
I dont know whether the other worker was the cause for the scratch, but don not want to go into that.
The fact that black south africans should be subjected to different standards.
this is utter rubbish. this view or vision is what cause some professionals i have spoken to believe that they are nothing more than token employees to reach equity goals. My view is that when u are appointed, Equity considerations are taken into account and you are suitably qualified to do the job, and you are not appointed because of race.(its employers that implement equity wrong,so they are the bloody idiots and not the system) If you mess up its not because of racism, or because you are black but because you did not put enough effort into it.
I have put a lot of effort into my profession because i like what i do and hope to one day be considered be on of the top of my game. This fact actually create an expectancy that my personal standards should be higher than everybody elses. when i mess up its because i am stupid or lazy and not because of my race. I keep hearing about women in business talking about it being a mans world and that they must work twice as hard. so as a black professional i should work twice as hard,to prove myself, not to others but to me!
My advice is not act in any manner that can bring your reputation into disrepute, if you do, bear the consequences.
Should an issue be called into question just because it is raised by a racist?
is the truth not deemed to be an defense in law? I have read through the decision of the JSC and the majority decision is laughable. after concluding their decision (it took me a week to finish reading) I could only shake my head at their decision, which they deem to be fair, however fairness does not mean that the decision is the right decision.
another question is what is the standard of proof the JSC hold to? a balance of probability or beyond a reasonable doubt? if the standard is the first then based on the facts the majority misunderstood their duty.
No matter whether kriegler had an ulterior motive, the finding or decision of the JSC is suspect and therefore i believe the JSC decision should be reviewed.
This is not a condonation of racism, but a support of ethical behaviour.
I do not know whether it is just me but the language used in the blog is far above my vocabulary and here i thought the constitution was written in a manner that every citizen can understand it.
Black Star is right.
After the liberation of South Vietnam, the PRV set up re-education camps. Here, recalcitrants were assisted in the transformation process. It was also a useful job training program. Perhaps South African whites unable to adust to the new order could be housed temporarily in such facilities. Just an idea.
We need to avoid, however, the mistakes made next door in Democratic Kampuchea. It is now accepted by almost everyone that Cmd Pol Pot went too far. Wholesale extermination can never, ever, be the answer.
Michael says:
September 12, 2009 at 13:25 pm
There is much that I would not speak openly about, the consequences of which may be too ghastly to contemplate (being called racist is not one of those).
The responsibility for the public not being aware of judges saying things even more stupid than the SCA lies squarely on the shoulders of those who know and won’t tell – I read somewhere that anything that cannot be observed does not exist.
All to often it seems that those who ought to know better are failing to learn from past experiences. The two things that resonate for me is the abuse of institutional might and the failure to take people along. This matter has elements of both.
In the article http://www.mg.co.za/article/2009-09-11-kriegler-saddles-up-for-rough-ride, Kriegler says that “he (Jeremy Gauntlett) had actually phoned me and told me about the decision and we had then agreed that if FUL were to do anything he couldn’t be a party to it, which made it very difficult”.
Yet he found it unnecessary to extend the same courtesy to Dumisa Ntsebeza or Kgomotso Moroka. What made his announcement of the action so urgent that it could not wait a few days for Cyril Ramaphosa to return from his overseas trip?
The pendulum may have swung too far in the haste to get the demographics shaped a bit better, but that’s the choice between having all white, heterosexual, male judges vs a not so perfect, reasonable representative judiciary.
It can never be argued successfully that we had an exemplary judiciary pre 1994. So what really is the big deal if we have a less than perfect judiciary today? On what basis is it assumed that had different judges been appointed that the judiciary as a whole would have been any better?
Bear in mind too that the word “competence” has become synonymous with resistance, even opposition, to change, having gained favour post 1994 like nothing else has.
Black Star Liner says:
September 12, 2009 at 20:39 pm
White people are so used to their racist culture that they don’t even realize that they are racist.
does this also not affect other races of “color” all this allegations of racism and who seem to be fixated more than whites on race? every issue raised on ethics or conduct and the first outcry is “Racism” and not punish the bliksem. does this not also show a racist culture and a lack realization that you are racist?
instead of focusing of correcting the wrong the focus is on sowing dissent among races.
Black Star Liner says:
September 12, 2009 at 20:39 pm
White children must be made to understand what their fore-fathers did and how destructive white-normative culture is.
South African is an African country after all, they must understand that the dominant culture ought to be African and not European.
and what about black south africans? Instead of focusing on constructive discourse consistently there is reference to the past. all that this kind of discussion does is focus on racial division and when the focus should be on the reducing and destroying racial division. I am not saying that the past should be forgotten, but it should be learnt from. yet every time the past is recalled instead of learning from it, the same mistakes are being made by referring back to what was done in the past.
the constitution is trying to ratify the inequalities with affirmative action so why refer back to the past. what is it that white kids should learn?
should they they learn that no matter what they do they will always be blamed for the troubles of the past and that blacks(25years and younger) who generally was not affected by apartheid still want to complain about it.
I cant even remember the worst of it, my mother used to tell how we could not walk into the front of the store, how we were forced to go buy items through a window at the back.
and what would you say is african dominant culture? does it mean that i because of khoi ancestry i should go back to the veld and run around in a leather “velletjie”? that i should go back and become a subsistance farmer? that i should not go to university to study because they teach european knowledge? if i do any of the above do you think i would ever have any money to look after my family?what do you refer to as african culture because all of us are born in africa so are we not all african and not european?
What is the definition of beauty and does it conform to the african standard or european standard? we are so americanised/eurpeanised that our standards have been assimilated by theirs and there are in most cases no difference.
lets look at the caster saga. even some africans thought that she looked like a man because of westernised values concerning her features (leave the results of the gender test out of it)or because she is not muscled like a conventional woman. Do you consider that a “big” woman is beautiful or do you conform the the westernised ideal of a thin body?
Its time that we stop being hypocrates and accept that the European/african value systems have been merged
if we want ideological re-education it must be for all races to teach that not everything a white person does is racist, that black people can be racist too and that the focus should be on extinguishing racial divisions. except that ideological retraining will not work because you can lead the horse to water but you cannot force it to drink.
you can teach a person the proper processes, but if they are unwilling to change their mindset, training is worth nothing and unfortunately ideologies and practice tend mostly to differ when we start to participate in the real world.
As a forced-to-be pro se, I must practice simplified text for the law-people:
1. Prof. PdV uses western deduction.
2. The Hlope-gang use communication with the “spirits of the ancestors”.
3. PdV automatically assumes HIS method is correct.
4. By his own definition: excluding the “other’s” methods is “racist”.
5. “Blankes remaining in Zanzi”, is a circle which can’t be squared.
6. Be realistic and accept Mugabe’s interpretation: being born in a stable doesn’t ma
7. Blankes moet trek -as they are already doing.
OC Moses, a valiant and commendable effort indeed. I am glad that you hold to views such as the ones which you articulated in your post directed towards Black Star Liner.
Let me, if may, say a few words as to why the good sense which you make will have no impact. While not meaning to affront Black Star Liner personally, I will say the following of the sought of blogger that he seems to typify: that sought of blogger is not interested in mending divisions. For the most part, that sought of blogger is not interested in mature discussion either. To the sought of blogger of which I currently speak, the twin pillars of argument are deflection and belligerence. That is, obscure all points that go to underscoring weak positions which are maintained or, failing that, speak more loudly and rudely and thereby show great loyalty to the greatly ridiculous view that great noise rather than great sense can carry the day in a debate. Their basic solution to the lingering distaste of having to share a country with white people boils down to two prongs in the alternative: domination or extermination.
So Black Star Liner, while we must certainly accept that apartheid has left this country with a bitterly painful legacy, your solution reflects either (a) that you are just taking the mick or (b), that your vehement submissions leave little room for even well reasoned disagreement and that you are one who subscribes to some or other species of the misguided two pronged solution which I outlined a little earlier. Actually, I hope that you tend more towards (a) because that would denote that you are idle and in desperate need of entertainment. That would make you irresponsible, but an adorable sought of rascal in the wider order of things. But should (b) present more of an accurate description, then I would suggest that you undertake something of the same excercise that the Professor bravely undertook which produced the present piece in respect of which I would greatly appreciate a relevant comment from you.
Maggs, if I may belatedly join the discussion between you and Michael, I would like to say a few words.
I do tend to think that implementing rather a hurried change of the racial composition of the bench after 1994 was important. I think we needed a drastic shift and a fairly immediate one at that given the proximity to apartheid.
But we should now find a way to marry the important objects of transformation (whatever the most tenable definition of it happens to be) and the promotion of strong benches in which litigants can place their trust.
I agree with a point that Michael raised a little earlier: most lawyers, regardless of race, would make poor judges if they lacked substantial experience in litigation before being appointed.
It cannot be easy to preside. Not that I have great experience in litigation or anything, but I would briefly outline a few of the skills which judges ought to enjoy before they would be able to preside over courts of first instance. And I shall ask that the more experienced among us generously correct me where I am wrong. Judges must accurately grasp the factual and legal issues raised. They must also properly construe the central submissions made by the parties and the bases upon which they are founded. They must also aim at dispensing justice despite whatever shortcomings of the advocates that appear before them happen to be. And moreover, they are not afforded the luxury of being partisan. No it is a seasoned and world-weary lawyer that in the main makes a good judge. A judge’s mind must cut through the shrubbery and get to the root and penetrating thought seems to be a skill which is enjoyed by experienced lawyers.
I would also add two further points. The first is that this sort of reasoning is fairly straightfoward. The second is that it would often require contrived investigation to conclude that this sort of reasoning discloses any racism.
@Maggs: writes “The responsibility for the public not being aware of judges saying things even more stupid than the SCA lies squarely on the shoulders of those who know and won’t tell.”
Well, yes, Maggs, that has been precisely my point. Liberals who hold black judges to lower standards – and are thus guilty of the bigotry of low expectations – should indeed have been speaking out. They are constrained, as I said, by a mixture of professional caution and cowardice.
As for when Kriegler told Ramaphosa about this or that regarding the FUL action, you may be right. But more interesting to me is the irony that Kriegler et al are accused of racism in the conventional sense — while the real racism here lies not in him criticising black judges without cause, but rather than in him not criticising them enough.
@ Maggs: “It can never be argued successfully that we had an exemplary judiciary pre 1994. So what really is the big deal if we have a less than perfect judiciary today?”
Maggs, this is a truly terrible argument. It is used all the time, in the form: “X was really, really bad under apartheid; so why are you complaining that X is bad now?” It is a very sad day when we the best we can do is benchmark ourselves against the horrible standards the pre-1994 government set for us.
Leigh says:
September 13, 2009 at 10:31 am
I agree that we should have good judges. In time the shape and character of our judiciary will approximate that which our society aspires towards – but it’s unlikely that we will ever have a perfect judiciary. Our system for now has sufficient checks and balances to correct the imperfections.
The overall picture though is distorted and will continue to be. I was in court many years ago. The advocate said that the outcome will “depend on which judge is hearing the matter”. I suspect that not much has changed.
I have read of really atrocious things said by judges like a rape “on a scale of one to five” or a father raping his daughter is not so bad because it’s a family matter. Ughhhh!
The point that is made is that judges are faulty too, pretty much like the rest of us. The notion of a fair, just and equitable justice system seriously flawed. It’s about the rich and/or powerful, the criminals, then the rest of us.
Race becomes an issue because we entertain and/or encourage that debate.
Dumisani, where did Judge Kriegler refer to “clever blacks”? I have Googled ‘”clever Blacks” kriegler’ and come up with nothing.
Michael says:
September 13, 2009 at 10:47 am
“while the real racism here lies not in him criticising black judges without cause, but rather than in him not criticising them enough” – what does that mean?
Kriegler opened himself to the racism challenge when he raised the issue of “Black judiciary” and when he failed to appropriately engage the three relevant Black members of FUL. There’s some rather intriguing aspects to this matter. Most fascinating for me is what turned a rascal into a hero.
The point I was attempting to make about pre and post 1994 is that there is no yardstick against which to qualitatively measure our judiciary. It cannot be correct that the transformation agenda lies at the heart of flawed judgments, rather it’s the nature of the beast i.e. the judiciary itself, which is at the centre.
Leigh, good comments.
You reiterate the simple point that the advocates of racial transformation cannot face: That (with notable exceptions), no lawyer — irrespective of their melanin — with limited litigation experience, will be a good judge. And the sad legacy of inequality is such that, for many years to come, the corp of experienced litigators will be overwhelmingy white.
I offered the analogy of a Jumbo pilot with only five years experience. But racial legitimacy is not any part of a pilot’s job-description. That is why, or so I assume, most of SAA’s pilots, and neurologists, remain white.
As I see it he implicit assumptions of Maggs’ arguments are the following:
1. It is an exaggeration to say that judges need 15 years or so litigation experience.
2. The hard technical skills needed to be a good judge are not analogous to those needed by pilots or neuroligists; in fact, the most important skills for a judge are empathy and an ability to identify with exclusion.
3. The imperative of short term racial transformation are so great that a significant sacrifice in technical skills are just a price we have to pay.
I think there may be some truth in all of arguments. At the same time, one should at least take account of the cautions sounded by (presumptively) non-racists like Mamphele Ramphele and Moeletsi Mbeki, regarding the terrible institutional damage that can be caused by promotiong people beyond their levels of competence.
2
In any debate the credibility and reputation of the debaters is of critical importance. If the debaters are in good standing I will try and listen to both and base my opinion purely on the strength of their arguments.
A Mr. Paul Ngobeni has been receiving media attention in respect of alleged unresolved issues in the USA. I am not sure that these issues have any basis in fact but, if this is the same man then I understand that this matter is to be raised in parliament by the DA.
http://politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=142623&sn=Detail
Until we have clarity I would be inclined to the opinion that this defense of the JSC as an attempt at creating personal standing within ruling structures rather than a well considered interpretation of the underlying legal issues.
Snowman, Kriegler J may not have used the precise words “clever blacks.” But dismissive racism is implicit in whatever he says.
Dumisani is right. One knows instinctively that he Kriegler is racist. That is confirmed by the tone he adopts. And by the fact that he attacks the JSC majority.
If you still doubt it, look at the Sunday Times leader page. Adv Ramatlhodi makes the brilliant point that Kriegler’s call for the JP to be subject to cross examination is “because of the colour of his skin.”
Maggs, you say that we have no yardstick against which to qualitatively measure our judiciary. I disagree.
Leaving aside any questionable holdings made by some senior judges for the moment, and suspending also the occassionally belaboured topic of race, some of our senior judges have said or at least intimated that many of the judgments penned by high court judges have been poor. Thus our yardstick is the concern expressed by senior members of the judiciary.
I will proffer a fairly obvious point here which hopefully will not be obscured by accusations of racism. One of our fellow bloggers once refered to a reflexive reference to racist subtext whenever certain sensitive points are debated. That is a sad truth. But when a judge of Edwin Cameron’s ability intimates that we ought to start thinking less about race and more about the quality of lawyers being appointed to the bench, we really should listen.
I would respectfully ask you a very straightfoward question which draws heavily from some of the sensitive but exceedingly germane points which Michael raised a little earlier. Let us say that you represent a client. Your client seeks to see another party found liable on the basis of unlawful competition. Only, your client seeks to make out a novel cause of action which is suitably premised on the principles of delictual liability. Your client seeks damages in the sum of millions and you as responsible counsel believe that the basis of your suit, although novel, is dead convincing in law. My question is: would you prefer a lawyer with five years of experience in litigation to preside or, would you rather the presiding officer were a seasoned lawyer with twenty years of commercial litigation under his belt?
If I may make a suggestion: the fairly obvious answer is why arbitration is quite popular.
Leigh, you are quite right within the terms you phrase the question re briefing counsel – on the assumption that the presiding judge is untransformed.
Yes, if the judge hearing the matter is to apply apartheid-era precedents, rely on alien colonialist authorities (UK and US law), and adopt the discourse of dessicated syllogism and linear logic — of course one would want an apartheid-trained SC steeped in these approaches.
But if I know that the judge is willing to look beyond the common law, eschew imperialist precedent, and look rather to the collectivist, non-alienated values implicit in Ubuntu, I will of course brief a black lawyer more likely to persuasively deploy transformative constitutionalism.
Leigh says:
September 13, 2009 at 15:38 pm
I will respond with a question.
If good law is so clear cut, technically or otherwise, why do we have 11 extremely wise, experienced judges of the CC listening to the same matter at the same time, reading the same documents, arriving at different conclusions, sometimes completely the opposite?
As an ordinary person until convinced otherwise, my experience is that justice as we know it is the luck of the draw.
Maggs is right – law is the luck of the draw.
That is why more and more countries are replacing courts with blackjack and bridge circles.
Mikhail Dworkin Fassbinder says:
September 13, 2009 at 16:01 pm
LOL.
Pol Pot or plain pot?
Mikhail Dworkin Fassbinder says:
September 13, 2009 at 16:01 pm
Mikhail, tell me why Buyisiwe had to attend court more than 40 times before her horrible, horrible case of rape was heard and then only because civil society intervened?
How is it that less than minimum sentences were imposed on the brutal rapists?
Why is it that the legal minds that claim to be the upholders of justice are silent on all these outrages perpetrated by the very justice system that we want to be held in such high esteem?
Maggs, I am not too sure about law being the luck of the draw.
If you were on trial for your life — would you choose you lawyer by lottery? I doubt it.
Maggs is right.
Never have I heard a white lawyer complaining about these types of cases.
Also, all white lawyers were silent during apartheid.
I remember well. Not a peep.
Nada.
Michael Osborne says:
September 13, 2009 at 16:10 pm
I heard somewhere the term “hanging judges”, which I interpreted as some judges are more prone to handing out the death sentence than others.
If I were on trial for life in a place where the death sentence applies, I would pray first for a non-hanging judge.
Maggs, thank you for that answer.
But I could not help noticing that you did not answer my question.
If you were on trial for life, would you or would you not choose your lawyer by lottery?
Michael Osborne says:
September 13, 2009 at 16:21 pm
I would probably not chose a lawyer by lottery.
Maggs, you appear to suggest that the determination of sound holdings is not so straightforward an affair. You seem to base this opinion on the view that senior judges sometimes arrive at different conclusions.
It is of course true that good lawyers can reach different conclusions. But with respect, I believe that my point speaks more to how those conclusions are reached. It goes to the ability the judges demonstrate when seeking to make findings. In addition, my point also goes to the confidence that judges enjoy from their respective bars. Believe me, advocates have opinions about the competence of judges.
Judges Moseneke and Cameron hear the same case. They reach different conclusions. And yet, both judgments reflect accurate apprehensions of the matter and very sound analyses to boot. This circumstance is meaningfully distinguishable from an instance in which judge X makes a ruling in the court of first instance only for counsel to mount a mightily strong appeal which ultimately gives rise to both a successful appeal and thorough roasting of the court a quo’s reasoning by the appeal court. And by roasting, I mean the stressing of basic mistakes such as findings on points that were not at issue, complete misconstructions of applicable principles or the penning of internally contradictory judgments.
Sometimes two individual judges may both be competent but may produce different holdings. But I think that the senior judges who have bravely drawn attention to the disquieting feature which is presently under discussion would be well aware of that. I for one believe it safe to conclude that their concern stems from the paucity of skill which is seen in judgments.
Let me just underscore and expand upon a point which Michael clearly stressed a little earlier: the blame does not really lie with the judges. Many of them just lacked the requisite experience in litigation. I expect that many would have made fine judges had they been accorded the chance to gain more seasoning before being appointed.
@anton kleinschmidt
I am inclined to agree with your arguement, particularly in view of the following updated article.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71627?oid=143163&sn=Detail
Mikhail, I just can’t get it quite right can I? At least not as far as you are concerned at any rate. If I am not over stepping the bounds of civilty imposed by Ubuntu when I ask a lawyer (Mr Malunga) for a legal answer in respect of a legal position which he purports to be able to defend, I am overlooking the point that only an apartheid-trained lawyer could ever agree with me on the present score.
So some sort of assistance appears to be in order. Would you please honour us with your learned and mightily progressive counsel by clarifying how the collectivist, non-alienated values implicit in Ubuntu can be applied in disputes which involve improperly obtained consent to contractual terms? Kissing and making up perhaps?
@Leigh
You, too, are trying to defend the indefensible, and that is a zero sum game.
Leigh, OC Moses:
If PdV were offering an original, honest critique I might begin to engage him. Rather he uses the hackneyed tactics of diversion by procedural liberalism… that is, the first priority is to establish and uphold just processes – and they(the white liberal gang) support their radical action to this end.
My more serious objection begins from the observation that just procedures may yield horrifically unjust results and that “democratic” formalities are insufficient to guarantee a just political/judicial system. Procedural justice instead arises from the interaction of politico-judicial institutions and political agents.
Instead, the aggressive civic disrespect the Kriegler gang demonstrates amounts to an act of civil ill-discipline.
PdV needs to stop parroting oversimplified, anti-racist bullet-points in ways that are not only shallow but also create a backlash against the same institutions he claims defend, or act like Critical Race Theory (an academia-soaked philosophy to begin with) is the only lens through which to examine and understand race relations.
Racism is a systemic, societal, institutional, omnipresent, and epistemologically embedded phenomenon that pervades every vestige of our reality. For most whites, however, racism is like murder: the concept exists but someone has to commit it in order for it to happen. This limited view of such a multilayered syndrome cultivates the sinister nature of racism and, in fact, perpetuates racist phenomena rather than eradicates them. Further, this view of racism disguises its true essence, thus allowing its tenets to proliferate.
Ideological re-education is the only way… after all, the philosophy of today’s classroom is the philosophy of tomorrow’s government.
Justice, what is it that you think I am trying to defend and what, pray tell, renders it indefensible?
Leigh, if you are looking for an imperialist source, see Grant Gilmore, The Death of Contract (1974.)
But to answer your question directly, an indigenous jurisprudence need not entail what you scornfully refer to as a “kiss and make up” session.
A flexible reconciliation-based/communitarian approach, founded on something other other than the myths of liberal autonomy implicit in the common law, is not terribly remote from mediation protocols that one finds even in bourgeois practice.
Unfortunately justice is not just. It is merely a manner try and give a good reason why the wrongful act you are perpetrated should be condoned. the death penalty is wrong, justice is trying to present a reasonable(lawful) answer on why the convicted should be put to death .
My personal view is allow the death penalty. there is no proof that it will reduce crime, but it sure would make me sleep a lot better.
I did Law advanced interpretation once and one of the chapter dealt with the horizontality of law ( I hope this is right cause i did not write the exam). anyway what it purports to be is that the same sort of case with similar facts may be decided differently by the same court. I do not know how this affect legal precedent but effectively this is what happens when different people interpret the same fact.
I believe all of us are rational, but one person may view a finding to be fair, another may view it to be unfair and another may view a finding to be racist. this may be because each of us interpret the facts in a different way and each of the interpretations may still be rational, but each of us need to be able to explain why we come to that conclusion and why it is reasonable in our view.
one of my lecturers used to say that if law was clear-cut, then there would be no need for attorneys, so go and study accounting. unfortunately laws and facts can be interpreted in different ways and that is what makes legal study fun. there is no right or wrong just good legal arguments.
Black Star Liner says:
September 13, 2009 at 18:49 pm
Procedural justice instead arises from the interaction of politico-judicial institutions and political agents.
Please explain. from experience procedural justice does not make a system fair, at most it is a paper exercise to show that the guidelines has been followed. excuse me when i make the following comment…
“any idiot can follow a procedure, but it takes true intelligence to make a rational finding.” how many times does governments/municipalities follow the procedure, yet the outcome of those processes are not always just.
Thats probably the difference between review and appeal with appeal dealing with rational conclusions rather then merely following a formalistic process.
black star liner
I would like to know what ideology do you conform to african/western or a amalgamation of the two? and how do you propose we go about defining an african ideology. If you are for example unless i understand you wrong european ideology is founded on racism or racist conduct then how would you define african ideology when the african focus is still on race? and sinse the two arguments seem to be two sides of the same coin european racism and african racism then what makes the ideologies different and how do you propose we differentiate between african/european racism?
Black Star Liner, very good of you to spare some of your time.
You appear to make out that the Professor is resorting to the idea that just process must be upheld. You seem to make out also that his resort thereto is really just a diversion of sorts. You also advance that your objection here – presumably to the Professor’s support for FUL’s noble suit – is that just process may produce unjust consequences. You would also have us believe that procedural justice arises from an interaction between so-called politico-judicial institutions and political agents.
With respect, I am not altogether clear about what you are getting at. And I do not think that my somewhat hazy grasp of the points which you seek to make out will suffice for present purposes. Perhaps you will elaborate on what you have advanced.
I would also ask you to explain how a seemingly well-founded attempt to hold a public body to its duty to take just decisions can amount to civic disrespect and ill discipline. I ask that you tender an exposition here because your claim seems to imply that the civilly respectful and disciplined course would be to meekly countenance the failure of a public body to extinguish its duty to take just decisions. If so, your view strikes one as mightily counterintuitive and I would imagine that it requires a defence of sorts. Should you elect to explain, I will say that before you do it is perhaps best to think about the implications of our claims before we make them.
I will say also that there seem to be a number of issues here – if we expand the pool of issues beyond the legal class thereof. And the suit which FUL means to press could conceivably have some sort of adverse impact on the judiciary insofar as some people may conclude that black judges are being preyed upon.
But that argument does not, in my view, undermine the view that FUL is doing the right thing. I say so for two reasons. First, if the claimant has standing and a sound jurisdictional and substantive foundation, then who the hell are you to say that the claimant should not seek to see a right enforced? Perhaps Mikhail can offer us some Ubuntu-infused wisdom that would justify your apparent haughtiness.
Secondly, if we were to compare ill consequences to see which is the more repellant, it seems to me that those which would ensue should there be no review application are worse than those which would follow the successful launching of the suit. On the one hand, we would have at least one judge who is a shameless liar presiding and a JSC which would not be held accountable for squandering what little integrity it had left. On the other hand, we would have some largely ill informed people thinking – without reasonable grounds and without an appreciation of the legal basis of the claim and of the implications that could well ensue should the JSC majority’s disgraceful behaviour go unchallenged – that the suit was launched for some unseemly purpose.
If my points here miss the content of your submissions, then I would suggest that you actually unpack and substantiate the points which you articulated in your last post. You could, for instance, try to illustrate how ‘procedural justice arises from the interaction of politico-judicial institutions and political agents’. You may also try to show how the ‘aggressive civic disrespect the Kriegler gang demonstrates amounts to an act of civil ill discipline’. Strong stuff this. Replete with zeal but light on argument.
Mikhail, I am willing to concede that the last point you make seems to be a fair one.
Black Star Liner is right.
I, like him, view so-called “procedure” as a bourgeois diversion. That’s why I boycotted both Civil and Criminal Procedure at Wits.
I say we just get on with substantive justice — a bit like Spike Lee’s “Do the Right Thing.”
[Black Star, I read somewhere that courses emphasising substantive law were offered at some of Cmd Pol Pot's reeducation camps. But most students flunked out in the end. Pity.]
Mikhail addressed one of his more recent posts to me. He spoke of a flexible reconciliation-orientated approach to dispute resolution which indigenous jurisprudence appears to recognise. He made out that this sort of approach is not so very different from mediation.
Let me mention two points at the outset. For a start, I will concede that he does make some good sense. Secondly, I wish to make it clear that I do not mean to suggest that this particular feature of indigenous jurisprudence is sensible because it resembles something with which those with so-called colonialist jurisprudential loyalties would be familiar. Rather, I think it can, at times, be a preferable approach to dispute resolution and I am glad that apparently this notion is embraced by more than one tradition. Amiable resolutions which accord the disputing parties the chance to preserve amicable relations should be pursued wherever possible.
But the proper concessions aside, I do wish to say a few more words here so as to unequivocally dispell any suggestion that Mikhail and I share enough in the way of jurisprudential common ground for me to change my mind about the FUL suit – we do not. Not by a sight.
One can readily distinguish between (a) a dispute involving parties to a transaction that owe duites to each other on the one hand, and (b), an instance involving a public body that could prejudice a good many people should it not be compelled to properly discharge its duty to take just decisions before it gains the confidence to make smug derelictions of duty a fixture. The first instance may allow for attempts at alternative dispute resolution. The second instance practically demands litigation.
Mikhail, you certainly have a varied diet. Spike Lee indeed
Leigh says:
September 13, 2009 at 16:41 pm
That goes to the heart of what I said.
The justice system wobbles along with the best of minds and it wobbles along with the worst of minds – the outcomes, that is what matters most, is pretty much the same.
In time the inexperienced judges will become experienced and sometime in the future it will settle at where society generally wants it to be.
It is interesting that Pierre’s contention, “the seemingly irrational decision of the JSC was not in itself racist”, does not seem to have gained much support in the comments here.
There are strong views that a substantial number of Black judges are not worthy – maybe that’s why the rascal has become the hero.
I foresee a problem with an approach which is merely substantive. The reason for a procedural approach is for everyone to be sure what the process is that should be followed. it may also have a consequence that people are not treated consistently. no proper process, who is then to say what would constitute a finding for example or what would constitute a dispute resolution procedure.
dispute resolution is also bound by procedure. the referral, time frames, agreement, what constitute agreement how it should be frased. there can be no substantive validity without boundaries being set so procedural and substantive process go hand in hand no matter whether you take a formal or informal approach boundaries need to be set and boundaries would indicate procedure. without proper procedure how do you propose you go about deciding what can and should be taken into account?
what is problematic with alternative dispute resolution processes is that it is not bound by precedent. It may be taken into account when a next decision should be made but it is not binding nor is it peremptory to for the next decision maker to take it into account. Case in point the Unfair discrimination matter in SAPS (dont have link)|that was settled out of court. the settlement is not in the public domain and therefore a next person sitting with the similar case cannot use it as precedent to assist his/her case.
I would argue that it is best that both matters as mentioned by Leigh should be settled in court.
Maggs is right.
That is why I demand that less experienced — but very promising — young pilots be put in the seats of SAA Jumbo jets. I am also demanding that somewhat under-experienced heart and brain surgeons be allowed to have a go in the operating theatres at stage hospitals.
(Already, recent graduate engineers are working hard at Eskom. And young accountants and managers are ensuring smooth service delivery by many local governments.)
I am anxious that progressive young leaders like Mr Malema join me in this mass campaign.
Like the slightly inexperienced judges to which Maggs refers, our eager young men and women will LEARN BY DOING!
Mikhail Dworkin Fassbinder says:
September 13, 2009 at 22:25 pm
Hey Mikhail,
Demand change.
Nando’s is waiting for you!
Seems like the expression “DEFENDING THE INDEFENSIBLE” is the new catch phrase …
Some were too slow to secure its use and harness its power ….
Mikhail Dworkin Fassbinder says: That is why I demand that less experienced — but very promising — young pilots be put in the seats of SAA Jumbo jets. I am also demanding that somewhat under-experienced heart and brain surgeons be allowed to have a go in the operating theatres at stage hospitals.
————————————————————————————————————————————
This is the best reasoning I have heard in a long time. You are saying in order to have black pilots in the national airlines we have to appoint inexperienced pilots. How inexperience and blackness are related is only known by you. Transformation is not about appointing inexperienced pilots. What is even worse is the implication that if a white candidate is appointed his or her experience is not in question. Shouldn’t experience apply to everyone?
I have often listened to debates about quota appointments, inexperienced judges being appointed etc. But no one has ever mentioned the names of these judges. Can Mikhail Dworkin Fassbinder please name these for us so that we can make up our minds about them?
Thomas, thank you so much for pointing out the obvious flaws in my argument.
I was writing under the preposterous assumptions that:
(a) There was, until quite recently, across the board discrimination against black pilots both in both military and civil aviation, such that virtually no black pilots were trained.
(b) It can take more than a decade to build up the number of flying hours to produce an experienced pilot.
(c) Even as of this year, the number of black students graduating with higher grade maths is far too few to even begin to fill the apartheid-based deficit in black graduates with the necessary backgrounds. Result is that the chronic shortage of technically skilled black graduates will, perpetuated by the current government’s unequal education policies, continue into the indefinite future.
Silly, silly, me.
Mikhail Dworkin Fassbinder says:
September 14, 2009 at 11:20 am
It seems that your cries to keep things pretty much the same has been heard.
http://www.iol.co.za/index.php?set_id=1&click_id=3099&art_id=iol1252918150751O154
@ Maggs
Au contraire, Maggs.
What part of my demand for immediate unconditional racial substiution regardless of training and experience do you not understand?
Pointing to the needs for efficient service delivery and complaining about the fact that the the current underspending on black education is not so much better than Verwoerd’s vile vision is but a racist diversion.
The main priority of transformation must be to advance the black professional classes so they can join the white elite that runs the country!
Thank you,
Mikhail Dworkin Fassbinder says:
September 14, 2009 at 12:12 pm
Aw. Seems I hurt your feelings. Sorry Mikhail.
Not to worry too much, it will stay the same for a while yet.
As each milestone is reached, new barriers to entry will emerge – “competence” has more facets than a well cut diamond.
Mikhail Dworkin Fassbinder: You are justifying your argument with statistics you do not mention. That’s called being ingenious. I worry at the reasoning you have in some matters.
(a) There was, until quite recently, across the board discrimination against black pilots both in both military and civil aviation, such that virtually no black pilots were trained.
Yes there has been discrimination but you seem to think that there were no pilots trained in other countries of this world. This therefore excludes these pilots. The only pilots that must be considered are those that were discriminated against and trained after the dismantling of apartheid. This is fuzzy logic.
(b) It can take more than a decade to build up the number of flying hours to produce an experienced pilot.
This should be true for all pilots black and white. It has been 16 years since democracy, even if the air force trained 10 pilots 4 years after democracy don’t you think these pilots would be competent by now or is there a different criterion for black pilots.
(c) Even as of this year, the number of black students graduating with higher grade maths is far too few to even begin to fill the apartheid-based deficit in black graduates with the necessary backgrounds. Result is that the chronic shortage of technically skilled black graduates will, perpetuated by the current government’s unequal education policies, continue into the indefinite future.
I have to agree with you that there are few black students that get matric with higher grade maths. How many is few? Your argument is therefore that since there are few matrics with mathematics these students should not therefore be given a chance to further their careers in the posts preserved for whites. On the other hand you might be saying blacks will never meet the standards of whites because there are few of them who can.
BY THE WAY I AM STILL WAITING FOR THE NAMES OF THE INCOMPETENT JUDGES.
Yes, Thomas, once again your points are brilliant:
1. Rather than employing South Africa white pilots, we should indeed import pilots Cuba and Malaysia. Bravo! (Fire the the racist white pilots. Let them go fly Cathy Pacific jets – that will teach them!)
2. For some reason, there remains, despite the training you refer to, a chronic shortage of all classes of pilots. See the report in the Cape Times today, based upon a presentation by the Chief of the Air Force. (Given that he is one of the one of the few top ranking white military officers, one can only assume that he has a filthy racist motivations in barring newer trainees from flying SAAF jets.
3. You ask how many is “few.” 2.3%, that’s how few blacks passed higher grade maths in matric, according to 2007 figures. The ANC goverment’s education policy apparently remains in the grip of people who believe blacks should be trained to be “hewers of wood and drawers of water.” But that’s OK.
4. Tragically, the racist mythology is even more deeply entrenched than you imagine. Even Dr Ramphele is pushing the nonsense about their being a skills shortage, and the destructive effects of rampant affirmative action. What a shame.
@Leigh
Apologies for the delayed response-my attention was diverted yesterday to the fascinating and satisfying back-and-forth “debate” between three pairs of tennis players in New York; satisfying since they at least arrived at a conclusion as to who wins the “arguement”. The game has its rules, and another dimension to this event was an incident involving the breaking of rules and the consequent punishment of the offender, with a further investigation pending. When we experience that breaking the rules leads to punishment, this sequence of events gives us a sense of security.
As stated before on this web site, legal arguement seemingly does not necessarily end in such a satisfactory outcome, since both lawyers may be right, depending on the paradigm from which they operate. But then law is not tennis, and therein lie the dilemma. Us ordinary citizens operate from a paradigm that mimics that of tennis- there are rules of the game in society, and if you break them you are punished. That gives us security. If people break the rules and are not punished, and even worse, are appointed to position of power and influence, we feel aggrieved.
Tennis players “debate” with each other, within the rules, using their skills, experience, coaching and training. Similarly we operate in society with similar training, coaching, skills and experience to “play the game”. When we find that someone is not being punished for what our paradigm says is breaking the rules, we feel insecure and uncomfortable, and want to pursue the matter further until we get “justice” (whatever that might mean).
The “indefensible” in this instance is the issue of questioning the JSC’s decision from the “racist” paradigm, using “alien colonialist authorities” and “eschewing imperialist precedent” (precedent was quite acceptable in getting Pres Zuma off the hook). According to some bloggers here- this paradigm cannot have validity in South Africa, and only an Ubuntu method of handling the situation is valid, and people who still cling to this “racist” paradigm must be put into camps and undergo ideological re-education.
In Cambodia I witnessed the consequences of total devastation of the country as a result of the ridiculous,”re-education of the people”, and other inhuman policies implemented by Pol Pot. I visited his last hide-out in a bunker and his grave, today a pitiful heap of sand and broken bottles, covered with a sheet of rusty corrugated iron. To-day very few Cambodians think of him as a hero, and his grave is all but forgotten- just a tourist attraction. Like apartheid, that social experiment also failed tragically, with disastrous consequences.
My point? Some people have very strong ideological convictions and believe that they have the only answers and that no-one else has a right to a different point of view, or the right to question their beliefs. Call them bigoted, or whatever, but they will not grant you, Leigh, or nor anyone else for that matter, the right to “defend the indefensible”. Hence it is a zero sum game in which they will always win and you will always lose- in their minds, anyway.
P.S, Thomas, are you perchance some kind of racist? What is this nonsense about “incompetent” black judges? Why should the fact that a lawyer has been in practice as attorneys for a few years make him any less “comperent” than a white racist who has been a silk for 20 years? After all, as Maggs so cogently taught us, law is but the “luck of the draw.”
Judge Kriegler’s “Recruiting Run” at the law seminar in Hermanus this weekend was apparently a dismal failure. He couldn’t maintain his facade and was caught out for the fraud that he is.
Maggs is right.
Nothing will change until we radically interrogate the whole question of “competence.” I have been trying to do that in my last few postings, only to be scorned by the likes of Thomas.
What a tragedy that even our esteemed former President’s brother, who had a reputation for being much more progressive than he, is spouting excuses to keep black people down. Clear, he has internalised the racist discourse.
Mikhail,
The system is so overwhelming it can and will consume the most noble of us at its whim.
Mikhail Dworkin Fassbinder says:
September 14, 2009 at 14:14 pm
If I, or many others like me, can only afford the lawyer who’s been in practice for a few years in going up against someone who can afford a battery of silk’s with over 20 year’s experience each, then I am wasting my time aren’t I, even if I am in the right?
How then does that make the justice system fair, just or equitable?
Maggs, who ever told you that the justice system is “fair, just or equitable”?
BTW, you will find that we are not an exception here. In every country in the world, I suspect the person with the more experienced lawyer usually — but not always — enjoys an overwhelming advantage.
(This may be the reason why, when it comes to the crunch, even people as committed to racial transformation as Pres. Zuma, Motata J and Hlophe JA brief white counsel.)
Michael says:
September 14, 2009 at 15:26 pm
“Hlophe JA brief white counsel”….
Michael you better pray that the JFHA does not see your mistake (nothing more than a typo I’m sure) here, Hlophe is “JP” and not “JA”….be careful next time otherwise people might actually think that you want are bringing yet another possible “solution” to the JP’s “problems. by suggesting that he goes to the SCA instead of the CC
Michael says:
September 14, 2009 at 15:26 pm
Thanks Michael.
I’ll refrain from suggesting that maybe Gary Player was not talking about golf when he famously said “The more I practice the luckier I get”.
That’s just in case Mikhail decides to whack me with Spike Lee or Pol Pot!
I wouldn’t use Gary Player as source of wisdom due to his racist and Apartheid supporting past.
Maggs, the position which I advance – and which I think Michael also submitts – can be articulated thus: at this juncture, we should appoint lawyers to the bench who, for the most part, have fairly extensive litigation experience.
You, on the other hand, seem to make out that lawyers who lack this exceedingly important experience can gain it on the bench and in time, they will come to enjoy the requisite legal skills.
You may have a point insofar as time spent performing a task can see the performer develop greater skill. My questions to you are: one, do you think that litigants should suffer the injustice of having to tolerate incompetent decision making in the mean time?
And two, if not, would the solution not be to implement an effective system whereby lawyers can gain the requisite experience at the bar and thus ascend to the bench ready to demonstrate appropriate measures of legal skill when making decisions?
Now while i would of course be interested to read you answers to the above questions, I will tender my answers to my own questions and leave it to you to determine whether doing so is a little cheeky. Predictably, my answers are (a) litigants should not have to deal will inexperienced lawyers making judicial decisions that impact on their lives and (b), we should aim at helping historically disadvantaged people at the bar – although changing the way things work at the bar presents a very thorny problem indeed given that sometimes it is not so much the instructing attorneys who cleave to certain stereotypes, but the clients.
Let me stress once again that most lawyers, regardless of race, need time for their skills to ripen into ability that could properly be called judicial. It cannot be easy to preside and litigants deserve nothing less than judges with the sort of technical ability the befits judicial office.
incompetent vs racially bias judgments …. difficult one, I must admit.
@ Harold Ferwood – ouch!
Leigh says:
September 14, 2009 at 16:38 pm
We have several important but opposing needs, all leading one way or the other to undesirable ends.
Doing something vs doing nothing is probably the lesser of the evils.
It’s unlikely that the legal profession will volunteer workable solutions.
Maggs,thank you for your answer. But I will respecfully request answers to my questions. You are of course not obliged to answer. But I would appreciate it.
I understand (experiencially and deductively) that John Hlophe JP is a victim of white normative institutional racism.
Institutional racism is the existence of institutional systemic policies (overt and subtle) and practices meant to place non-white racial and ethnic groups at a disadvantage in relation to the institution’s white members.
It is a set of norms and practices within S.A judicial institutions, beside the interactions among institutions that produce this racialized outcomes against non-white people. White people are the ideological children of this structured racialisation that cannot be reduced to individual prejudice or to the single function of an institution.
Like-wise, it is important to note that once a structure is emplaced, its consequences likely will affect the entire population — not just the racially discriminated people. Hence whiteness or white social status becomes property, something of value owned by certain members of society. It is this precious whiteness that PdV and the rest of the White liberal gang are in defense of and use the pretext of “flawed procedure” as a tactic in this pursuit.
I choose to examines the interactions among institutions and entities and reject reductionist thought. There are mutual, cumulative causations instead of a single cause hence the dishonesty of vain proceduralism.
White people need to ask themselves one question: “How can I see myself as a just person when I willingly participate and benefit in a system that is inherently unfair?”
=============================================================
Regarding Ideological re-education: What offence is there in a teaching approach that attempts to help students question and challenge domination, and the beliefs and practices that dominate.
Ideological re-education of the white people ought to be about habits of thought, reading, writing, and speaking which go beneath surface meaning, first impressions, dominant myths, official pronouncements, traditional clichés, received wisdom, and mere opinions, to understand the deep meaning, root causes, social context, ideology, and personal consequences of any action, event, object, process, organization, experience, text, subject matter, policy, mass media, or discourse.
“This, then, is the great humanistic and historical task of the oppressed: to liberate themselves and their oppressors as well.”
Paulo Freire – Pedagogy of the Oppressed
Leigh says:
September 14, 2009 at 16:38 pm
- My questions to you are: one, do you think that litigants should suffer the injustice of having to tolerate incompetent decision making in the mean time?
Indeed not.
There have been some truly terribly decisions, fortunately our system has the checks and balances to correct some of those.
As best as I can recall the CC was not very complimentary in the matter re the President Mandela vs SARU.
- And two, if not, would the solution not be to implement an effective system whereby lawyers can gain the requisite experience at the bar and thus ascend to the bench ready to demonstrate appropriate measures of legal skill when making decisions?
That would be ideal, but not realistic. Legal professionals are not quite jumping over themselves to do anything towards that. I sense that the inertia is founded on resistance more than anything else.
I vaguely remember, maybe even wrong, some suggestion by then Dep Minister of Justice de Lange over a school of sorts for judges and that was rather controversial at the time.
Maggs is right.
As the Chief of the Air Force admits (see today’s Cape Times), there are still not enough new pilots being trained.
As Maggs says with respect to younger judges, it would be ideal that the younger pilots got more training before their first flights. But that is not realistic.
So: Let them take a fly at it, I say!
Maggs is right.
She obviously knows a lot about the training programs of the Law Society and the Bar.
Like Maggs, I have not heard of any initiative they have to train young lawyers.
Nothing.
Nada.
Ziltch.
Mikhail Dworkin Fassbinder says:
September 14, 2009 at 17:26 pm
Is there a like between pot and flying?
You seem to have an affinity for both.
oops!
make that link
Mikhail Dworkin Fassbinder says:
September 14, 2009 at 17:30 pm
You seem sufficiently well informed.
Is there any research on the extent of the awful judgments by the Black judges appointed since 1994 or do we have to rely on the what we are told by those who know best?
Maggs, there probably is some research, but I would not bother reading it. You will find it is statistically dubious crap written by racist liberals.
Anyway, such research, even if it exists, would not impress me.
We all understand that there are just some jobs where years of experience is of little or no value. In that regard, being a judge is a bit like riding a bicycle. Do you know what I mean?
P.S. I always answer questions. So, yes, Maggs there is indeed a link between pot and flying. But only quite a tenuous one.
Mikhail Dworkin Fassbinder says:
September 14, 2009 at 17:53 pm
LOL @ your p.s.
Is there anything definitive to give rise to the concerns about our Black judges?
If indeed there are valid reasons why people are concerned, is our system not sufficiently geared to remedy that?
Maggs, I have told you a thousand times that I reject, with contempt, the idea you need any particular experience to be a judge.
A good heart, and a sense of UBUNTU is what counts.
Respek!
@ Black Star Liner…you say….”I understand (experiencially and deductively) that John Hlophe JP is a victim of white normative institutional racism.”
There are plenty of black legal practioners who are doing very well within the legal fraternity and who are highly respected by their colleagues, both black and white. Are they also victims of “white normative institutional racism?”.
@ anton kleinschimdt:
“Are they also victims of “white normative institutional racism?”
Yes.
@ Black Star Liner
Please explain why a black member of the judiciary who is doing very well and is highly regarded by his colleagues, black and white, is also a victim of “white normative institutional racism”. Is this because it suits you or are there valid reasons that society should be aware of.
You are starting to sound plaintive rather than convinced of your rectitude.
I take comfort from the fact that accusations of racism have finite durability and that eventually they will cease to have any impact in informed circles.