Good news for the executive and for racial nationalists, but (perhaps) bad news for Judge President John Hlophe and for those who believe in real and deep transformation of the judiciary.
This is my tentative reaction to the news that President Jacob Zuma this week sent letters to the party leaders in parliament requesting their input before July 13 about his intention to appoint Advocate Dumisa Ntsebeza SC, Advocate Ismael Semenya SC, Adv Vas Soni SC and Andiswa Ndoni, the current president of the Black Lawyers Association to the Judicial Services Commission (JSC) in the place of Adv George Bizos SC, Adv Kgomotso Moroko SC, Adv Seth Nthai and John Ernstzen.
It is of course impossible to say for certain how the new appointees will deal with the complaint against Hlophe and what influence they will exert on the JSC regarding the appointment of judges. But at first glance the appointments do not inspire much confidence.
The new appointments include Advocate Ntsebeza who was fired by Hlophe after Ntsebeza’s rather lackluster performance before the Supreme Court of Appeal (SCA) in Hlophe’s case against the judges of the Constitutional Court. Judge Hlophe revealed in an affidavit submitted to the JSC that he had lost confidence in Ntsebeza, who had been his trusted ally since the controversy broke in January last year. Ntsebeza was then accused of “messing up Hlophe’s case”.
I might be wrong, but I assume that there is no love lost between the Judge President and Advocate Ntsebeza after the tardy way in which he was treated by Hlophe. Hlophe might also ask Ntsebeza to recuse himself from proceedings when the JSC continues to consider the complaint against him.
Ntsebeza, along with Andiswa Ndoni, the current chairperson of the Black Lawyers Association, are perceived by some to be racial nationalists who might push strongly for the racial transformation of the bench and may frown upon the appointment of progressive white lawyers to the bench. One will have to wait and see whether this perception will be proved wrong or whether the JSC will move sharply to the right, appointing more black but conservative, anti-human rights, lawyers to the bench.
Advocate Vas Soni has also not always demonstrated a keen and abiding belief in the values of openness and transparency underlying our Constitution. As an acting judge he ordered the gagging of the Mail & Guardian, ruling that that Imvume, and its boss Sandi Majali’s right to privacy, dignity and reputation, trumped both freedom of expression and the public’s right to know about the conduct of their elected government.
At the time this ruling was severely criticised for striking completely the wrong balance between the individual rights of a flashy businessman on the one hand and the right to open and transparent government on the other. As it turned out the Mail & Guardian’s story which formed the subject of the gagging order was spot on and the ANC paid back the money that Majali’s company had donated to the ANC after a dodgy deal with Petro-SA. Soni’s judgment was definitely pro-executive. Pro-human rights it was not.
Advocate Ismael Semenya has also been embroiled in controversy. He stepped down in protest from the Johannesburg Bar council earlier this year after the bar council failed to promote some of his preferred candidates to senior council. At first blush, this seems like a commendable steps. At last a man who took a stand in favour of transformation!
But Noseweek reports that there might have been other reasons for Semenya’s behaviour. According to Noseweek:
Among the 41 juniors who applied for Silk this year were two Aft [Advocates for Transformation] members, Jacco Venter and Andre Bezuidenhout, both from Semenya’s Pitje Chambers. But in the deliberation process over the final list both were excluded. Semenya was furious that Bezuidenhout was dropped. “He threw his toys out of the cot and said that unless at least Jacco Venter was included then he and the three other Aft silks on the committee wouldn’t vote for anyone,” says a senior advocate.
As a compromise, 50-year-old Venter was put on the list. But this did not stop Semenya from resigning as bar council chairman the same day. Why was Semenya so angry that Andre Bezuidenhout didn’t make it?
Well, besides their legal partnership, they also have a long-standing business relationship. They are co-directors of Pitje Chambers (Pty) Ltd, which owns Pitje Chambers in Pritchard Street, close to the high court, and, as major shareholders, derive a generous rental income from some 70-plus advocates who rent chambers there.
Semenya, 50, and Bezuidenhout, 47, are also directors of Ilangabi Investments, formed in 2001, and Luendo Holdings – “a holding company for diversified investments” – incorporated in 2004. Back in 2006 Business Report carried an intriguing story about how Luendo Holdings had attempted to gain a stake in South Africa’s Porsche agency. Not in that story was the background to their pitch.
In late 2005 a letter was dispatched to the luxury car manufacturer in Germany – on the letterhead of the Presidency and signed by Mbeki’s legal adviser, advocate Mojanku Gumbi. A senior advocate who has seen this letter tells noseweek: “It said that the state president had noted with some dismay that Porsche had not seen the light in South Africa. Its agency [LSM Distributors] had not become empowered and was lily-white – and the president considered this was wrong. The letter recommended Luendo Holdings as an empowerment component.”
Gumbi, who no longer works in the president’s office, is not a member of Aft. Her CV states that she is a member of the Azanian People’s Organisation, as well as an executive member of the Black Lawyers’ Association. Semenya and Bezuidenhout duly made a presentation to Porsche late in 2005. To fend off their bid, Toby Venter, whose family had owned exclusive rights to import Porsche cars since 1995, announced that he was giving a 30% stake in LSM Distributors to new empowerment partner Hlongwane Consulting, headed by former Denel director Fana Hlongwane (who was also adviser to then Defence Minister Joe Modise at the time he was nurturing the notorious arms deal).
I hope I am wrong, but these four appointments do not bode well for the real and deep transformation of the judiciary, by which I mean the appointment not only of more black and women judges, but also of more judges who have internalised the values of the Constitution and would act in a scrupulously honest and ethical manner.
President Zuma seems to have “talked the talk” regarding respect for judicial independence on Monday before the judges, but with these appointments it is far from clear whether he is “walking the walk” on this matter. The signal sent by these appointments is that when the ANC and the government it leads talk about judicial transformation, they might mean something completely different from what progressive lawyers and politicians mean when they use this phrase.
At least it is now manifestly clear that Zuma is indeed packing the JSC with ANC deployees.
Not that it will make much of a difference – it has all the years been so packed.
It just will make the position of the Chief Justice and of the President of the SCA on the JSC all the more untenable and controversial. They will reach a stage where they might have to resign if they would like to save some personal respectability or perception of being unbiased – in other words of not simply being in cahoots with their comrades in the ANC in packing the judiciary and undermining the credibility of the judiciary.
Lest we forget
• The DA and others are still challenging the Mpshe decision to drop charges against uMsholozi.
• Vusi Pikoli and Bishop Tutu among others are still challenging the dismissal of Vusi Pikoli.
• UMsholozi,has still to reward his ‘loyal’ supporters who did so for their own narrow selfish interests.
Zuma, the charlatan, is thus packing his defence. Who in Zuma’s shoes wouldn’t?
I guess Bizos SC isn’t one of the ANC favourites… Why change it to a group of people who are questionable? It’s not so wise to include a person who Hlophe JP can also accuse of bias, unless its to frustrate his efforts of becoming a Justice of the Constitutional Court of South Africa.
Mmm not good at all. A big disappointment. Question for you Pierre, how do you see the difference between a Racial Nationalist, a Nationalist, and a Racist?
Nationalism definition on Answers.com
1. Devotion to the interests or culture of one’s nation.
2. The belief that nations will benefit from acting independently rather than collectively, emphasizing national rather than international goals.
3. Aspirations for national independence in a country under foreign domination.
…and of Racism
1. The belief that race accounts for differences in human character or ability and that a particular race is superior to others.
2. Discrimination or prejudice based on race.
So please explain what a racial nationalist is, and was Verwoerd a racial nationalist?
Could not these appointments be challenged on the grounds of racial inequality?
Yes what is a “racial nationalist”? Not a “non-racial nationalist”. Nor a non-racial non-nationalist (what is the opposite of a nationalist?).
Kameraad, a good question. Let me try and explain my view. I see nationalism as a concept premised on exclusivity and thus exclusion of “the other”, of those who do not “fit in”. The national socialists of Nazi Germany or the Afrikaner nationalists of the apartheid era embraced an ideology in which what they saw as their own kind were thought to be superior and where those who were not “their own kind” were relegated at best to second class citizenship and at worse treated appallingly or even killed. “Racial nationalists” for me, means an ideology which – unlike the black consciousness of Steve Biko – is based on a reaction to white racism and set up in opposition to a racial group (whites) seen as the oppressor. BC said that the best reaction to white oppression was for black people to liberate themselves from the shackles of white domination, not by living their lives and positioning themselves in reaction to that white oppression (and thus always being dictated to and imprisoned by the white mindset and view), not by setting up whites and the oppression many of them perpetuate as the “enemy” and thus in reaction to it, but rather as free individuals, proud of who they are despite the stupidity of white racism. Race nationalism seems to me the problematic cousin of black consciousness because it deals with white racism and oppression by according to that group (white racists) an overarching power and importance that necessitates action always in REACTION to it – instead of acting as individuals who have liberated themselves from this racism and oppression and act as free individuals, proud of who they are. Its based on hate and resentment and not on joy, and a feeling of pride and true liberty. It is premised on a negative and exclusionary impulse and not on a positive and embracing one. I do not mean to suggest that black people have a duty to embrace whites, hold hands with them and sing Kumbaya. I think, rather, that race nationalists are wrong because they try to replicate all the worst aspects of white oppression and racism in their response to white racism, thus remaining the prisoners of that racism. In the long run, it will lead to the perpetuation of prejudice, discrimination, exclusion and ultimately oppression because it would mirror the worst of the past oppressor because of a lack of true freedom. I hope I am making sense.
But prof, I thought that BEE and AA were good things? I mean they certainly are in reaction to our racial history and they do try to set up formerly advantaged as racial oppressors who are somehow still responsible for the misery of the black majority. This means what you are describing there as racial nationalism is exactly what AA, BEE, Apartheid and Nazi Germany set out to achieve.
I thought AA and BEE lead to racial harmony, not to mirroring the worst of the past oppressor? Turns out Moeletsi Mbeki was right after all!
Back on topic: it is rather interesting that there are so many representatives of the Black Lawyer Association on the candidate list. Section 178 of the Constitution clearly sets out the requirements of the JSC. The main purpose of this section is to ensure that the JSC is representative of the practice as a whole and not of a particular lawyer’s association. The JSC needs only 2 lawyers and 2 advocates, and these have to be chosen from the practice in such a way that they represent the practice as a whole. Is the BLA used to load the JSC?
Section 178 also clearly states that at least 3 members have to be from opposition parties. This implies that the JSC is required to have at least one DA and at least one Cope member on the bench, since these are our main opposition parties. If the ANC fails to retain a DA candidate, it would mean our JSC is unconstitutional and not representative.
Prof
Now that I can finally access your site again we will be covering your opinions in the Traps Report (refers traffic to you) on the Richmark Sentinel
http://www.richmarksentinel.com/rs_main.asp#
See “Opinion”
Traps
Ah, I think we broadly agree on this one then. Although I would use different terminology.
As an aside, how weak is The Weekender’s journalism. They qoute from this blog post at length without mentioning the blog post once.
Their only other sources are unnamed but only feature in one paragraph.
http://www.theweekender.co.za/article.aspx?ID=BD4A1032077
“…perceived by some as racial nationalists…” by some you mean yourself and other whites who are vehemently opposed to transformation in the legal profession? the answer is YES. I see you racists have added another word to your dictionary, words used to try and drive your propaganda ie racial nationalists. Look, the President exercised his constitutional powers in terms of the Constitution. You and other whingers on this blog and some like you outside of this blog can whine and whine until you are blue in the face. Would you have raised the same cacophony had the President appointed some rednecks? again i believe not, you would have praised him for upholding the indepedence of the judiciary while at the same time popping some wine, in celebration that your propaganda has worked. I support the proposed niminees to the JSC, the are some of the few African who truly uderstand the racism in the Legal profession that has driven our Lawyers to poverty, and the culprits are people like you and other rednecks who want to maintain the status quo by suppossedly interpreting the Constitution to ‘democracy’ DREAM ON, WE ARE CONSTITUTIONAL LAW EXPERTS TOO, SO ARE WE POLITICAL SCIENTISTS. SO, WE ARE AWARE OF YOUR EVIL INTENTIONS AND WILL RESIST THEM. GET THIS THROUGH YOUR THICK HEAD, THE ANC WILL RULE UNTIL ALA OR JESUS COMES BACK YOU FOOL!
change is coming, change is coming. i see them looking in their cudboards, looking for their visas and passports, they are sweating their underpants, blouses, the apartheid ministers are turning in their graves, phew! they are talking bullshit, they are talking nonsense, AMANDLA! NXAMALALA, AMANDALA NXAMALALA.. Pire or whatever your name is, do think astute legal scholars like myself will believe what you write on your blog day in, day out! please!
Skhokho Radebe, your posts seem to be making two points, namely (1) my relatively considered and reasoned criticism must be dismissed because I am white and therefore a racist who needs to leave the country and (2) the ANC rules South Africa and the actions of its leaders (and for the moment, our country) are thus beyond criticism. I believe you happen to be wrong on both points and – if you feel like it – would be much obliged if you could answer, in a reasoned manner, the questions I pose.
First, your ad hominem attacks fail to engage with the substance of my arguments and seems to reveal a very (un-ANC) view of the world. The Freedom Charter says that South Africa belongs to all who live in it – white and black – and making an argument based on “them” (whites) and “us” (blacks) is therefore in conflict with the ANC’s non-racial vision of South Africa. I would suggest a better line of attack on my argument (if I may) would be to argue that transformation must be seen exclusively in racial terms and not in terms of broader values about social justice and transformation. I might then respond by arguing that your vision embraces a kind of race-essentialism not dissimilar to that of the apartheid government and that it demonstrates that you are a prisoner of apartheid style thinking. So my questions to you would be: is it your contention that a black judge will automatically be pro-poor, in favour of gender equality, and in favour of social justice for everyone in South Africa BECAUSE of the judge’s race? If yes, why?
Second, we live in a democracy which I understand at its heart to encompass a free flow of (and contestation between) ideas with political parties vying for the votes of the masses of our people. People are entitled to vote for the party of their choice and no party has a divine right to rule without the consent of the people. Do you agree with this contention? If not, why not? If yes, how do you square it with the views expressed here?
Pierre, I suspect you are wasting your time. Recently on Politics web:
Whatever I wish all the Jews would go back where they came from. Hitler did a very good job! by Skhokho Radebe on June 20 2009, 15:35
Here also, Prof, I agree with Kameraad Mhambi. Do not feed the Trolls!
In our conspiracy-theory-prone society I’m surprised no-one has yet suggested the obvious: Skhokho Radebe is either (1) one of the last remaining AWB activists, behind his computer in Lichtenburg, hammering away feverishly to ridicule the hated black enemy, or (2) a gifted satirist behind his/her computer in Melville, pushing the envelope over a glass of good chardonnay. The likelihood of a real person holding Skhokho Radebe’s views taking the trouble to log in to this blog and going through the motions of responding doesn’t seem that great. But it’s only a suggestion. Skhokho Radebe apart, there is a more important point. Blogs, like talk radio, have exposed us to the perceptions of the widest layers society, not only the more erudite. It’s not just a reality check, nor just an education, but also a challenge. If Skhokho Radebe were real, and were your football team-mate, or nephew, or neighbour, how would you respond?
(Aside: we being what we are, offering a glass of good chardonnay or whatever is preferred might be a useful way of getting beyond the initial tensions and discovering the well of goodwill beyond.)
PIrre De Vos. My arguments are based on Black Consciousness. My contention are that black Judges would be in a much better position to understand our than white Judges. Just as women Judges are in a better position to understand women issues. The ANC, which i’m a member by the way, argues in favour of nonracialism and so on , we are all about appearances, i see you have been fooled. In reality we are a diffeerent animal, see the latest developments in the legal profession and the change of power dynamics, ie no long concentrated in the President. The freedom Charter is just that, a charter, just like the Financial services charter nothing much came out of it and the ANC has selective respect for it, eg the nationalisation of mines. If it applied it, then this should not be an issue as it is today. So Prof, you seem not understand ANC policy. So Prof, My views advocate black consciouness not what you and the apt named Critic accuses me of .
CRITIC, what i’m trying to say is, Africans must be left to their devices to deal with their problems, unhindered by people like you with liberal tendencies and racist to the bone. I’m an African( black in language that you understand) and very proud. I regard your comments as insulting in the extreme about me and the AWB. I dont think you understood my post. You instead rushed to answer to something you barely understand. Which is typical of the so-called whites or the new species of blacks( ie coconuts and black diamonds) and those who think they are white.
@Kamerrad Mhambi, i stand by my comments. unlike you, i have not lived a life of privilege due the aparthed theft,rape, murder, and other things that my grandparents committed. I have instead suffered under people like you and other black collaborators like Matanzima, Buthelezi etc. So i will not apologise for my comments.
Skhokho Radebe
Welcome home, Lindelani. Oh, how we’ve missed you! And you’ve expanded your vocab and improved your language usage too. It’s so much better when you don’t swear so much, although I see you are still given to the odd bit of shouting now and then.
Critic’s first option is on the mark. This man Skhokho is a white racist. He affects “African-ness,” in order to discredit the viewpoints that he so clumsily parodies.
Skhokho! Drop your mask! Try meeting “Africanist” argument on its own terms, rather than by crude irony!
Sarah,
If Skhokho Radebe indeed is Lindelani, then I would certainly commend his return. I have certainly missed him. I am in need of entertainment at its best. Welcome back bro!
Kameraad Mhambi,
Just to add to the definition section;
“Patriotism is when love of your own people comes first; nationalism, when hate for people other than your own comes first.” Charles DeGaulle
Critic and Micheal is right, thats exactly what I thought as well, when I read Shoko’s comments, a afrikaans man, maybe woman, with a low IQ, trying to to characterize the sort of black person stereo typical to his view of black people in general. You don’t convince me Shoko
Well, that is exactly who we thought Lindelani was, so perhaps everyone is correct and that this Radebe person is actually Lindelani, who is actually a white supremacist attempting to create a negative perception of the average black male in this country in order to further perpetuate racial prejudice and tension.
I’m not Lindelani and do not know who Lindelani is. I see you chose not to engage with the issues raised in my comment. But simply labelled me something that i’m not. So typical of neo-liberals. This shall be my last post, i see no value in arguing with neo-liberals or affording them the benefit of my arguments. One day you will realise the grave that you created for yourselves. Pity it will be too late. You liberals pretend to care about social discourse and the betterment of mankind, yet in truth you dont give an damn about African, or anything, so long as you are still holding on to the economic power, which is in itself a product of apartheid genocide. I uncatagorically support the current developmets in our political scene. It seems that African people will become their own sooner than expected. For your information, i’m an African male, and know thousands and thousands who share similar views as mine, If you did not hide behind high wall and eletric fances, you would be aware of the levels of anger in this country, not only from African people, but also from the so-called coloureds.Its funny because most of these angry people have degrees in various field, and will some day hear your case in one of the High Courts and you will be suprised when you get a raw deal. Yes you will appeal, but money have been wasted. I think whte people must just stop fooling themselves and implement real intergration as spelled out by Steve Biko.
Skhokho Radebe,
I am a black male just like you. Unlike you, I have never experienced direct nor indirect discrimination in my life and therefore I do not share the anger that you may habour against white people and this has made it difficult for me to engage with the “issues” that you have raised.
That aside, I will try to dissect and deal with any issue that you raise in your post as long as, in my opinion, it carries weight and does not amount to merely emotional and racist girbberish.
May you please raise your issues again?
Skhokho! Lindelani was another white racist who used an “African” name in order to mock black contributors. That is why we thought you were him, under yet another fake moniker.
Whatever. (One white racist is as bad as another.) Please cut out your colonialist sarcasm and face the music. ( Like a man! ) Make you arguments honestly! You may be a white racist. There are many of you around, even in the “New” South Africa. But we will still respect you if you drop you mocking mask and have the courage of your sadly bigoted convictions!
Hi Pierre,
I agree with Michael and others who think “Skhokho” is really a white rasict posing as a black fascist. His writing style does not seem consistent.
Should someone like this be allowed to derail your blog and prevent intelligent discussion, not to mention poisoning relations between black and white people? (Although I must say that a number of the astute black readers of this blog did not take the bait.)
Is posing as someone else, and stirring up racial hatred part of protected speech? I’d like your opinion on this.
My feeling is that if this person was identifying themself, and then voicing racist views, they could be engaged with, as Michael has suggested. But someone who is creating a false identity to stir up hatred should not be allowed to do so, and you should moderate those posts.
Be well,
Doron
Doron, when someone posts a comment I can see their email and IP address. From this info I am led to believe that “Skhokho” is a real person. But even if he is not, I have chosen not to delete his comments as I do not think that would be in the spirit of a Blog. I am uncomfortable with playing god by deciding which comments are acceptable and which one’s not. Once I go down that route will I not be tempted to delete comments that upset or insult me? Then maybe the comments I find “offensive” (that irritating Americanism which makes us all a victim)? I have no proof that Skhokho’s views are not honestly held by a real person. Should I censor such views because it makes me uncomfortable? I think not. That would be an ostrich attitude papering over the very real racial fault lines in our society. This might placate some white readers, but it does not seem to reflect the openness and transparency I always demand of others.