In the past I have been critical of the way in which the Judicial Services Commission (JSC) has been fulfilling its constitutional obligations as required by the Constitution. The preposterous decision of a majority of members on the disciplinary committee of the JSC (all but one of the lawyers on the JSC committee voting with the minority) to gloss over the blatant lies of one or more of the parties in the battle between the Constitutional Court and Judge President Hlophe, is a case in point.
The JSC has not always covered itself in glory and some of its members, whose ego’s seem disproportionately large compared to their intellects, have made fools of themselves by bullying candidates for appointment or by making statements (including blatantly homophobic statements) which display a serious lack of commitment to the values of the Constitution.
Unlike Ngoako Ramatlhodi, who believes the JSC may not be criticised (unless the criticism emanates from Judge President Hlophe or the ruling party, of course), I believe we all have a right and a patriotic duty to subject the actions of the JSC to critical scrutiny and to lambast it if we think it is not doing its job properly. That is what democracy is surely all about.
Yet, such criticism should be based on the facts and on a plausible interpretation of the Constitution and the law. That is why I take issue with an article written by James Myburgh and published on Politicsweb, in which he launches a scathing attack on judicial transformation in South Africa. Myburgh was upset with innocuous remarks made recently in Johannesburg by former South African, Margaret Marshall, who is now the Chief Justice of the Massachusetts Supreme Judicial Court, In the Bram Fisher Memorial Lecture at the Legal Resources Trust, Marshall said:
In its fifteen years of constitutional democracy, South Africa has made remarkable strides in creating a diverse judiciary of distinction. You have done so on a far faster, and more impressive scale than we have…. The diversity of your courts is, and should be, great cause for pride and celebration.
Myburgh points to the entirely uncontroversial remarks by President Jacob Zuma in June this year to bolster his case that the appointment of judges is now an entirely racist affair. Zuma said then that the “transformation of the judiciary entails amongst others having a court system that the people of South Africa have confidence in. Obviously as part of this, we need to ensure that judicial officers reflect the demographics of our country”. Myburgh then continues:
Marshall is certainly correct to claim that the ANC has attained its racial goals in the judiciary speedily and on an impressive scale. Whether this is “great cause for pride and celebration” is more open to question. It represents, for one thing, the triumph of extreme racism. One of the founding texts of modern German anti-Semitism – Adolf Stoecker’s 1879 pamphlet “What we Demand of Modern Jewry” – called for the “limitation of appointments of Jewish judges in proportion to the size of the population.” Should South Africa really be proud that, a hundred and thirty years later, the ANC has adopted the same limitation, when it comes to the appointment of white (including Jewish) judges in South Africa?
Such over the top criticism, it seems to me, is singularly unhelpful as it completely denies the political imperative of transforming our judiciary to make it more legitimate and to rectify the past racial discrimination in the appointment of judges. By equating Nazi Germany with present day South Africa, Myburgh ignores three hundred years of racial oppression in South Africa and fails to see that as a matter of ethics and of law there is a need for the racial and gender transformation of the judiciary. Surely a more racial and gender diverse judiciary is one of the (many) requirements for the establishment of a more legitimate legal system.
In fact, he also ignores section 174(2) of the Constitution which states that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. To call the JSC’s preference for the appointment of suitably qualified black men and women as judges a “triumph of extreme racism” also directly contradicts the views expressed by the Constitutional Court in Minister of Finance v Van Heerden which stated that our Constitution’s equality guarantee does not only allow for different treatment on the basis of race to correct past injustice, but sometimes demand it.
Pulling a Menzi Simelane, Myburgh chooses to ignore the authoritative interpretation of the Constitution by our highest court in order to further a narrow political agenda. This is because he attacks the very principle enshrined in our Constitution that requires a racial transformation of the judiciary. He obviously believes that race should play NO role in the appointment of judges, a position that is legally untenable and unethical, given our history of racial oppression and the provisions in our Constitution.
This does not mean, of course, that the JSC should not be criticised for the manner in which it has gone about its constitutionally mandated task. It has made some really bad appointments in the name of judicial transformation. (The appointment of John Hlophe as Judge President of the Cape High Court and Carol Lewis to the Supreme Court of Appeal are two prime examples of this affirmative action policy going very wrong.)
What is needed is a more nuanced approach to this issue, including – as pointed out on this Blog before – an engagement with the way in which the legal profession is structured and the racially skewed briefing patters at the bar. (In this regard I note with interest that Menzi Simelane asked a white lawyer, David Unterhalter, to provide him with arguments to defend himself against the findings of the Ginwala Inquiry and the recommendations of the Public Service Commission that he should face disciplinary charges.)
Making wild statements comparing South Africa and Nazi Germany detracts from these real issues with which we have so far not engaged with sufficiently.
Professor, this is, in the main, a balanced piece. It is balanced, to my mind, inasmuch as it is attentive to need for and constitutional requirement of race and gender-based judicial appointments. And it also underscored that the manner in which transformative appointments have been made has been perverted by a decidedly unimpressive JSC.
But I do have a question though: what makes you suggest that Lewis JA was a poor appointment? Surely not just the talk she gave on the problems with the judiciary – which, I will add, was harshly and even somewhat unfairly construed in my view?
Pierre, Mr Myburgh’s article seems to be impeccably researched and is, if anything, an understatement of the problems in judicial appointments. With reference to “300 years of racial oppression”, what specifically are you referring to? Is it the murder of white farmers on the eastern frontier by marauding Xhosa gangs in the 19th century? Is it the decimation of the indigenous people by the invading Nguni colonialists from the north of which Jacob Zuma and Thabo Mbeki are descendants? Is it the brutal murder of Piet Retief and his party by the thug Dingane? Instead of blindly endorsing a section of the Constitution and accepting it as a point of departure, you as a lawyer, should instead be asking what such a racist and sexist clause is doing in the Constitution in the first place. On what basis can race, pigment, or the morphology of one’s pudenda be deemed a primary determinant of what makes a good judge? If you believe these to be more important than judicial skill or merit, you are simply endorsing, after the fact, racial discrimination as practised from 1948. This doesn’t seem like 300 years to me. You are seemingly just as adept as Mr. Myburgh in making “wild statements” and positing “over the top criticism”.
So as to preclude your having to retract any more “ill-considered” remarks (I personally don’t think Zuma and gangster are mutually exclusive), please try and apply a bit more lateral thought before shooting from the literary hip. I suspect quite a few readers like me are particularly allergic to anything that smacks of obsequious suck-up commentary. Otherwise, I quite often agree with your views.
Pierre, like Leigh I am intrigued by your criticism of Lewis JA’s appointment. Please enlighten us.
Graham, many people on this blog have opined that we can distinguish between two related but separated goals: first, the appointment of suitably skilful jurists and secondly, the promotion of public confidence in the courts by making appointments with a view to ensuring that our judiciary is representative of the population. A judiciary that is replete with talent but at odds with the racial and gender-based composition of our population could meet with more societal resistance than it could withstand. And that of course could easily render its wealth of talent meaningless.
@ Pierre.
“n this regard I note with interest that Menzi Simelane asked a white lawyer, David Unterhalter, to provide him with arguments to defend himself against the findings of the Ginwala Inquiry and the recommendations of the Public Service Commission that he should face disciplinary charges.”
I note with interest that the White lawyer, David Unterhalter, must have given some pretty darn good advice.
Do you think those arguments were less or more “(i)ncredible, ridiculous, dangerous” than Hulley’s?
http://constitutionallyspeaking.co.za/incredible-ridiculous-dangerous/
The impression is created by Myburgh that only black judges deliver bad judgements.Not surprisingly, and for all his so called impeccable research, this wild claim is not substantiated.He fails even to give a few examples of the bad judgments delivered by the only two judges he dares to mention by name.Ofcourse even if he had done so,it is likely that there are just as many white judges who have delivered jut as many bad judgments.
By far the most shocking judgment I have ever read has to be Nicholson’s judgment in Zuma’s favour.I simply have never seen any judgment which cocked-up almost each and every point dealt with in such spectacular fashion.Before the SCA, Zuma’s counsel couldn’t do enough to distance himself from Nicholson J’s shocking interpretation of the law.Not surprisingly, this jugdment was met with the most scathing criticism by the SCA of any judgment in recent history.Yet most sober minded people will tell you, correctly, that that doesn’t make Nicholson J a bad judge.The reality is that bad judgments are made on a daily basis in our courts,by black as well as white judges.Even world renowned jurists such as judge Dennis Davis have had as many judgments overturned on appeal as have been upheld.The biased picture painted by the likes of Myburgh, Lewis JA and others won’t fool too many of us, except maybe those among us who should’ve packed for Perth a while ago.
The comments by Judge Cachalia which Myburgh desperately clings onto apply equally to many many judgments by white judges, Nicholson J’s above decision being just one perfect example.
I must add my voice to thosw who say that the JSE has made some mistakes by appointing people (of all races) not up to standard as judges, but mistakes were the exception rather than the rule. I personally don’t think the appointment of Lewis JA to the SCA was a mistake, but if I’m proven wrong I will apologise.
Mr Myburgh seems to forget one thing: To have a legitimate bench means you must not only have trustworthy judges, you must have judges who are actually trusted by those they serve.
Sivakashi says:
December 3, 2009 at 16:08 pm
I don’t recall Lewis JA having said that the bad appointment were Black, and I don’t think she meant to say that.
I read many judgements, and I agree 100% with everything else you say.
‘appointment’ should be ‘appointments’
I read Myburgh and associated articles, and to be honest, I don’t quite get it.
If we can for a moment put aside all loyalties, various SA histories, and instead look at the clean, clear cut legislation under the Constitution and Bill of Rights, what do we see today? What can we reasonably demand? And what can we fight for?
Marshall has a point, but this is South Africa. She doesn’t live here. She only knows what she is allowed to see as a respected guest.
In my mind, we’re in trouble regardless, however, SA has a history of producing miracles. I’m waiting and expecting to experience the next one.
~SA has a history of producing miracles. I’m waiting and expecting to experience the next one.~
Like the ANC coming clean on the arms deal? Or perhaps the DA proposing an amnesty over any illicit dealings by South Africans in the arms deal?
As long as the connecteds have a need to keep themselves out of trouble in a court of law, they’re pretty much forced to tinker with the mechanisms of justice. And equity (as opposed to equal opportunity) gives them the space to play.
Pierre, I cannot think what possessed you to equate the appointment of Hlophe JP and Lewis JA.
Judge Hlophe may not be perfect in all respects, but there is one thing all can agree: he is towering jurisprudential giant, on par with Solon of Athens, Solomon of Jerusalem, and Oliver Wendell Holmes himself.
Lewis JA, by contrast, has never written a judgment or article worth reading. What is more, by suggesting that certain “affirmative action” appointments have perhaps been unwise, she has revealed herself as a purile RACIST!
(Perhaps Lewis JA is inspired by her despicable brother David Dyzenhaus, a so-called progressive Jew, who claimed in repulsive SALJ piece of last year that zealous “trasnformation” discourse did echo faintly certain Nazi tropes.)
The heart of the matter is the context in which racial discrimination in South Africa and in Nazi Germany is justified. No matter what context is used to justify it though, it still remains racial discrimination, whether it was propagated by the Nazi’s, the National Party or the ANC. In day-to-day social interaction people are being judged on the basis of the pigmentation of their skin, the constitution of their hair and the shape of their noses. What’s more, the people being discriminated against belong to a tiny minority which renders them defenceless against the hegemony of the large majority seeking to take advantage of a policy that is being judged abhorrent in Nazi Germany and the pre ’94 South Africa. How is this practice, to which there is no end in sight, going to ensure a harmonious society in South Africa, or is this not our goal?
How about equal opportunity instead? This means that public resources, like schools, be available to all South Africans to utilise in order to advance according to their abilities and interests?
Chris
Why sould the pigmentation of judge belonging to the white minority cuase a trust issue? Isn’t it time that South Africans acknowledge that judging a judge’s trustworthiness on skin colour instead of proven track record is a form of racism? Why should this consideration be entered into the equation when appointing judges then?
I think your criticism of Lewis JA is unmotivated and unfair. She is a smart, hard-working judge who has received a lot of irresponsible flack for a single speech (though I disagreed with that speech and think it was was politically ill-judged). Other than that, I agree that the Myburgh article was preposterous.
Fassbinder, your post is hilarious – I assume you are being ironic in your reference to JP Hlophe as a jurisprudential giant. A quick perusal of the law reports will tell you that he has had NO reported judgments in the last 5 years, bar his anti-poor eviction of the Joe Slovo settlers which was emphatically overturned on appeal; before that his only notable achievement was the disgusting judgment and refusal to pronounce on leave to appeal in New Clicks. If Hlophe JP is a jurisprudential giant, Ben Griesel, who has some 70 reported judgments over the same period in the same division, many of which make new and important law, must be a super-collossus.
for thousands of years there was no centralised government or even a wheel for that matter. Africans develop slower intellectually than europeans. 300 years of racial oppression doesnt change the fact that europeans arrived here by ship whilst Africans were still clothed in animal skin with not even a hint of sophisticated structural development. So I wont be told that the intellectual backlog that Africans have is a result of 300 years of oppression as opposed to the thousands of years that they didnt develop on their own without all the racial oppression.
Mark is right.
I am just disappointed that he failed to mention the magnificent civilisation built by native Britons under Queen Boadicea. Visit her magnificent palace at Windsor next time you are in London. Makes Great Zimbabwe look like a ruin!
The emotions that one gets to notice when the debate around transformation takes place make it clear that transformation is actually a sensitive topic here is our country South Africa.
Many people have raised various definition of what transformation including quoting the legislation as Professor has done above.
But for me transformation is in principle have got nothing to do with race. A judiciary for instance can be made up of only white judges or black judges and I would not matter in principle.
Because of reality I tend to have two views on transformation. The primary view is the foregoing one i.e. transformation to me is not about race but mind. The secondary view may seem to contradict the primary one but it is not which the secondary view goes as follows: reality necessitates the demographics of the country to be taken into account in order to complete the transformation process. The secondary view is underpinned by the doctrine that any governing system to be effective, it has to take into account the attributes of the governed object.
Transformation of mind
My entry point to the debate of transformation is that transformation is more to do with revolutionalising the mind of the person than to replace one race with another. It is no point for instance to replace a white judge with a black judge, yet the black judge share views which are totally despicable to the plight of the oppressed. This means that when appointing a judge as part of the transformation agenda the mindset of the judge will have to be taken into account to determine whether the judge will indeed make judgements which are progressive.
Consideration of the demographics of the country
Transformation involves changing anything that is believed not to be conforming to the attributes of the governed object of the governing system- that is my view. We can succeed in transforming the minds of persons in our government institutions but if those institutions do not represent the demographics of the country; the situation will feed to stereotypes of many people and they will begin to ask questions which will by the way conform to logic, for instance, if black people are excluded from the judiciary: why black people are being excluded from the judiciary? And then the process of transformation in form of race will then begin.
The meaning of transformation in South Africa should therefore be that of bringing in transformed minds in the first instance and the representation of the demographics of the country in the second instance.
Furthermore, in the midst of this transformation agenda there should be no one who should be denied opportunities or promotions on the basis on race. Yes this may sound contradictory but it is not- if the process of transformation was presided over by competent and highly skilled people who know how to maneuver the process, the magnitude of the problems we have would be meagre.
The problems currently enervating the transformation process will continue to be with us because the people who have the potential to successfully manage this process are being suppressed as part of the overall strategy to eliminate competition in politics and on the other side as part of consolidating the conditions of the status quo so that the conditions can reproduce themselves.
I remain committed to the struggle against all forms of SIMELANEPHOBIA.
That being said, I would be revolted if it turns out that Cde Simelane has indeed taken advice from a WHITE lawyer. Why would our heroes, comrades Zuma, Hlophe, Selebi, and now, Simelane, retain WHITE counsel when there are hundreds of thousands of black lawyers with far more experience? And why should so-called “experience” count anyway? I just don’t get it.
Prof.
I cannot post here as my computer tells me there is an HTTP error. Needed to urgently respond to the misrepresentation of history by Graham.
@ Dworky.
“I just don’t get it”.
The truth finally outs.
It must be tough on you.
Good post Prof.
Must say I regarded the article by James Myburgh in the same light as that written by David Bullard; tasteless or at least very dry humour.
@ Graham
Myburgh’s article seems to be impeccably researched but in his research he has omitted or at best underscored the ‘Constitutional requirement’ that the judiciary must represent the demographics in our society. This omission is quite humungous and has made his entire article a joke or at best under-researched.
@ Graham
Pertaining to 300 years of racial oppression, I kindly request that you consult your history. Afrikaans speaking people are the descendants of those people who came from the Batavian Republic (now Netherlands or Dutch). They first came here in 1652. Do the maths! Do not confuse racial oppression with institutionalised racial oppression which started after the establishment of the Union of South Africa in 1910 and became exacerbated in 1948 when the National Party assumed power, after the Second World War and the fall of Jan Smuts.
@ Graham
When you mention Xhosa in the context that you have, you must obviously expect me to jump as though I am Khosi when you mention Mbeki. I will assume you are referring to the nine Frontier Wars which were fought between Xhosas and the then Burghers for, inter alia, the land between the Kei and the Fish Rivers (the then Zuurveld area). I do not have to remind you as to who this land belonged to at the time before the said area was turned into British Kaffraria by one of the Governer-Generals of the Cape Colony. On both fronts the people involved were farmers and the Zuurveld area was very fertile and excellent for farming and both races wanted it for themselves. It was not a case of one race’s gangs ‘murdering’ another. Gee, why use the word ‘murder’ as though Xhosas could commit murder under the laws of white farmers. They were not their subjects and could not “break” their laws by committing murder. Next time kindly use ‘killing’ when you feel like broaching the subject!
@ Graham
I presume you are referring to Mfecane of Difaqane when you mention the “decimation of the indigenous people by the invading Nguni colonialists”. Let me educate you here as well. Mfecane or Difaqane was never committed by the Nguni colonialists. It was committed by Zulus under Shaka in an attempt to increase the Zulu Empire. Moreover, Shaka himself was merely continuing on a large scale, something that was already happening. Even in Europe at that time most countries like Prussia, Austria, Italy, etc. were attacking other countries in order to ‘unite’ their people.
@ Graham
On Piet Retief. The reason why the man and his men were killed is because some of his men were spotted at night sneaking into the kraal of Dingane. Well, as you can imagine, those who were snooping around at night were seen by the guards as witches. It was the early 1800s mind you. That is why Dingane gave an order to, ‘Kill the wizard.’
@ Sine
“Let me educate you here as well. Mfecane or Difaqane was never committed by the Nguni colonialists. It was committed by Zulus under Shaka in an attempt to increase the Zulu Empire.”
Sine, it appears you have absorbed your “history” from a clouded colonial source.
In fact, there never was a Mfecane of Difaqane — except in the fevered imaginations of white historiographers.
The Zulu, like all the people of Africa, were, by and large, peaceful pastoralists. They lived on principles of social democracy, guided by the spirit of UBUNTU! All important decisions were taken by consensus. The full panoply on socio-economic rights were respected.
And there was no violence, except when bulls were ritually killed.
Sine – You should remember that: “History is but a fable which has been agreed upon.” As far as South Africa is concerned, there is a large part of so-called history which has not been agreed upon. Whereas you are right that one should not confuse the settlement in the Cape in 1652 and the things that subsequently happened with institutionalized apartheid since 1910 (or is it 1948?). Why is it then that, whenever apartheid (roughly 1948-1992) is the subject of contention, so often people refers to 300 years of racial oppression? The math indicates that this should be counted from 1652, but this is clearly not the period of institutionalized racism/apartheid since 1948, which is what the Constitution is all about, I think. One should remember that the early Colonies, and the Unions, then the Union of South Africa, and then the Republic of South Africa all had some legitimacy in international law and relations – so I think a rather broad statement about 300 years of racism (implying that the Collonialists during this time committed racist practices towards indigenous people) is not correct. The Nguni people were not indigenous during 1652. There are also incidents of racism by black (towards brown and white); by brown (towards black and white) as there are incidents of racism by white against black and brown. There are also incidents of racism by the English against the Dutch (Afrikanres) and black and brown. A rather sweeping statement to cover the history since 1652 I think inappropriate.
Ok then, I have a question. Will there ever be a time when race is no longer an issue and appointments will be based on merit, and merit only? Will all these years of racial oppression ever die down or will this forever be an issue? Say for instance: if, within three hundred years from now, there are more competent white judges than black judges, will it then be ok to appoint all these competent white judges or will transformation still play a role in the judicial appointments?
Mark – That, obviously, is a political question.
@ Mouse
Thanks for your response Mouse and particularly for that interesting definition of history.
History may indeed comprise what you have provided about but there are nonetheless those aspects of it which your mind may obviously distinguish to be probable and not.
Think about 16 December and the Blood River incident for instance. Do you regard it as probable that the relevant river was red with blood of the Zulu warriors during that war before which the Burghers entered into a Covenant with God to ask his assistance in defeating the then seemingly impregnable Zulu warriors? I sure do not believe so!
My own history forces me to conclude that institutionalized Apartheid did not start in 1948 but only became flagrant and overt in the eyes of the international community after 1948. Remember the awareness around human rights took shape after 1945 (conclusion of the Second World War and the signing of the Human Rights Declaration aboard a ship off the coast of the United States of America by SOUTH AFRICA (represented by Jan Smuts), Britain (rep by Winston Churchill), USA (rep by Woodrow Wilson), Russia (rep by Joseph Stalin) and China. [Gee, I cannot believe Russia's Stalin and South Africa's Jan Smuts were there considered in hindsight.] That is when the draconian laws came to be realized by the international community. By then there were already laws in place such as the land affairs act of 1913 which prevented ‘natives’ from owning laws in urban areas. This resulted in people establishing companies and close corporations which would own land on their behalf. Moreover, laws disenfranchising coloureds and natives were already in place as early as the 1930s under the leadership of the man who worked tirelessly to guarantee South Africa’s sovereignty from the Crown (Britain), JBM Hertzog. He may not have been the actual leader then but he was surely influential and he also worked to introduce Afrikaans as an official language and made sure it was used in courts and other state institutions.
In your post you seem to draw a distinction between racial oppression and institutionalised racial oppression. A careful perusal of your history will tell you that there has been racial oppression since 1652; the racial oppression which the Dutch (descendants from the Batavian Republic) suffered from the British (1795 during the first British annexation and 1806 during the second British annexation of the Cape); then Afrikaans speaking people under the British governance ( 1840s during the British annexation of Natal Republic, 1877 during the first British annexation of the Transvaal and OFS Republics under Shepstone which the resulted in the First Anglo-Boer War, and 1899 – 1902 during the Second Anglo-Boer War which was ended by the Peace Treaty of Vereeniging) and the racial oppression which the Afrikaans speaking people inflicted upon the natives. During this period, the natives suffered more than all the other different race groups for obvious reasons. Therefore, it seems to me to be proper to make reference to 300 years of racial oppression instead of the almost 50 years of institutionalised racial oppression.
Maybe we could create a new word, “menziacious”, as a local equivalent of “mendacious”.
@ Mark et Mouse
In my view, race will stop playing a role the moment the majority of South Africans are living above the poverty line and are emancipated through education. That is the moment the ruling party will stop using food parcels and grants as incentives to get more votes. That is the moment the ordinary man on the street will not look back in time before casting his vote but will look towards the future. That’s the moment the ordinary man will not be interested in hearing what has been done but what will be done in future in order entice him to vote for the speaker’s party.
@ Mouse et al
Disclaimer: The dates and/or sequence of events in my post (Sine at 10:34 am) may not be entirely accurate as I was relying on my memory to write the relevant post. Please if you have something which you disagree with, it should be expressed with this in mind.
Sine – No, I agree with most you have to say, the point that I wanted to make is that, where you have two or more accounts on a specific historical fact, one has to be careful what one accepts as correct (taking everything with a pinch of salt as it were). What one has to note, however, is that in the period before the late nineteenth century, there are not enough grounds upon which one can say that natives (now that is a thouroughly misleading concept, as is distinctrtion on grounds of colour, because all people – including the Dutch, Bermans, French Hugenots, Brits etc that were born in Africa are acuatlly ‘natives’ of Africa) suffered more at the hands of foreigners (or whites, if you like) than others. True, there were wars etc, with attrocities galore – from both sides, but that also happened in Biblical times – I mean, King David cutting horses heels, putting a ring through a captured king’s nose and pulling him behind a horse, oohh! True that the whites were coloniialists, but so were the black people. The black and white insurgence met each other at the Fish River after quite some time that there were whites in the Cape, but no blacks. The land actiually belonged to the SAN, the Khoi, the Hottentots, the Bushmen, whatever one would like to call them. What I’m saying is, when we are talking about transformation of the Bench, according to current demographics (now I have my doubts whether demographics are properly taken into account – how many black JP’s v how many white JP’s for example – same at regional court President level), which is of course a constitutional imperative, with whicjh I agree, we cannot (and should not) refer to the period before apartheid. We simply do not have enough credible information to build our naratives (and folklore) on concerning that period. In modern times, most of historical events are published and properly noted. And those are the facts that we should take into account when really debating things like transformation.
Disclaimer – this has been very hastilly typed before returning to court – please excuse any typos and syntax issues.
@ Mouse
Thanks for your response the contents of which I have noted including the disclaimer below thereat. I agree with your post with a few exceptions that I have mentioned below herein;
1. Strictly speaking, it is a bit carelessly misleading to say the land in the erstwhile Cape Colony belonged to the San or Bushmen. A bit of a lecture here; Khoi people or Hottentots are different from the San or Bushmen. The former are the (half) descendants of the modern-day Coloured people and were quite taller in height and bigger in size and more yellowish in complexion than the latter who were also known as the hunters.
2. Secondly, in my mind it is a bit misleading to talk about transformation with reference only to numbers. It goes beyond that and should have sustainability. To illustrate what I am saying I will provide an example. A good example is that of a young black LLB graduate straight out of varsity. He joins a reputable law firm due to his above average university results and his advanced writing and oral skills in English (a second language for him). In not involving him in commercial matters but instead sending him straight to Criminal Law Department or RAF Department, that reputable law firm is not only taking unfair advantage of the BEE score-card by employing him but it is actually sending the transformation into the stone age. Had he wanted to become a criminal litigator or specialise in defrauding the RAF, he would have joined that small law firm in the rural Eastern Cape Province. Needless to say, he cannot go on and open up his own practice and specialise in corporate and commercial law nor in intellectual property law despite the fact that he took all the necessary electives at varsity in order to diversify his degree and be ready to fit into any commercial law firm department, and make him more employable. The reputable law firm has actually legally paralysed the said LLB graduate and the only choice he has now is to join the public service as a legal advisor in one of the government departments. He is permanently lost to the legal profession and the skills he has or could have accumulated in another law firm are lost to the potential young black LLB graduates still at varsity whom he could have coached to become corporate and commercial litigators to be reckoned with. Therefore, until such time as these reputable law firms stop pretending to be training young black LLB graduates whilst legally paralysing them, the need for transformation of the judiciary will accelerate and we will witness more commercial agreements (loans, cessions and pledges, management, shareholders’, etc. agreements) providing for arbitration in order to run away from these BEE appointees, something which they can avoid by skilling them.
I note that we cannot really force these reputable law firms to skill these young black LLB graduates but they are delaying the process and it is really the clients and the entire country which are the ultimate losers.
@ Mouse
Sorry bro I did not finish my para 1. The reason I am saying it is carelessly misleading to say the land belonged to the San and the Khoi people is because they were hunters and not farmers. They were always migrating chasing after the animals. They did not stay in one place and therefore cannot be said to have owned any land because they did not own lands but merely inhabited them.
Natives (Xhosas, Sothos, Vendas, Zulus, Swazis, etc.) and Whites, on the other hand not only inhabited land but they took ownership thereof. They established homes and farms thereon. Basically, the San and the Khoi people ‘visited’ the Cape in the same way that Vasco da Gama visited the Cape (and called it the ‘Cape of Storms’ and his Prince who financed the former’s voyages called it the ‘Cape of Good Hope’), Bartholomew Diaz visited Port Elizabeth in the 1400s and Christopher Columbus visited the Americas (North and South American continents). These people cannot properly be called to have belonged to these places. They were visitors.
Sine – Your last paragraph refers: In other words, the Cape was not Colonized by jan Van Riebeeck et al, as it were, just appropriated.
I also do not think that your assertion in the earlier post that the khoi (or Hottentot) are the (half) descendants of modern day coloured people is correct. It may be in rtespect of somne, but not in respect of all. On the nomad-existence of the Bushemen, we can agree – but then they were hunters – chasing after the animals – does that make them different from herders herding after grazing for the animals until they feel like settling down? I don’t think so. Nevertheless, the point I’m trying to make is that both black and white ‘colonized’ parts of Africa, and it cannot be blamed only on the whites. I’m sure on this we can agree.
As far as your example is concerned – yes, I agree there are many cuplrits, especially among legal firms that do not really give people (of the previously disadvantaged groups) equal opportunities to develop, and therefore that a need for transformation still exists (fifteen years after democracy) and will probably be with us for quite siome time yet (even accelerate). However, that does not mean that we should continue looking only and just at the disadvantages that existed pre-1994, and then, we should not really include the period before apartheid in determining the need and the rate of transformation. Then again, one should not only look at numbers (demography) to attain transformation of the bench, I fully agree. We should be looking towards creating a positive duty on all concerned, especially the universities and the law firms, to properly train lawyers of all race groups to give them equal opportunities to ascend the bench one day – and one should perhaps keep in mind that the constitutional imperative in s 174(2) contains the word ‘broadly’ in contradistinction to ‘exactly’ when we speak of demographics of the racial and gender composition. We should also keep in mind the regional groupings of races and gender. The way that judicial appointment is currently done, does not reflect any of those values, I’m sad to say, otherwise the talk on who is black and who is white to determine their suitability for appointment, as was recently done in interviews on the JSC would not have been necessary at all. In short, while I agree transformation along racial and gender lines is imperatively required, I do not think that the way in which it is currently done is correct, constitutionally or otherwise. I will not, however, like Myburgh, try and equate the whole thing with Naziism. That is taking it too far – I agree.
@ Mouse
I like where this discussion is going…
1. Strictly speaking, when Jan van Riebeeck arrived at the Cape, the only people who were here (I am saying here merely because I am currently in Cape Town) were the San and the Khoi people. These are the very same people that he bartered with in order to get meat and supplement his and his men’s diets which comprised only food which could be harvested from farming at the time. He got cattle from the Khoi people who were owners of very few domestic animals at the time in exchange for other items from Europe that he came with. Needless to say, there were quarrels between him on one hand and the San and the Khoi people on the other hand which resulted in him and his men fighting the San and the Khoi people and driving them, by force, into the interior and further north into the Sahara dessert. Whether driving people away from the land which they had occupied though for a shorter period does not comprise colonization is a matter of debate which I will not delve into now. On appropriation, if I was attentive in the Public International Law class and read Prof. Duggard well, as well as my law of contract, then I would venture to say that you can only appropriate land if it is not occupied at the time of such appropriation.
2. I will regard your ‘restatement’ of the Coloured people being the (half) descendants of the Khoi and Dutch people as putting emphasis than being nugatory since I also neither did not say all nor some. I merely offered a general proposition. Well, we all know that each proposition is subject to an exception.
3. On herders herding cattle and farming, I will not refute your argument nor support it. I will merely draw your attention to the fact that farming in the case of the Natives and Whites was in the wide sense not just in reference to cattle. Natives were and some are farmers who plough their fields. The Natives may not have practised crop rotation and may have practised only subsistence farming but they nevertheless were farmers who made use of the land not only for cattle but for their crops as well. Therefore, your argument about herding the cattle and hunting and chasing after animals may be correct, which I do not admit, but it needs not be looked into.
4. I do not agree with your submission that both blacks and whites colonised Africa but I am willing to hear your argument in support of this submission.
5. I do not agree with your submission that we should not consider the period for which the Apartheid subsisted in determining the period and the rate of transformation. My teacher once said to us; “Take your setback as a setup for your setoff.” On this statement by my teacher, it is necessary for us to consider our history for a proper understanding of our future and putting things into context. We cannot pretend that everything is ‘honky dory’ when it is clearly not. The moment we put aside consideration and rectifications of the injustices of the past (as Constitutionally mandated) is the moment this country will descend into the civil war between the rich and the poor, the very same civil war that both our black and white leaders worked tirelessly to avoid. Our history informs our future. We cannot take it for granted.
6. I agree with you that “some among us” with their own narrow agendas have jumped on the transformation bandwagon in an attempt to achieve personal gains but that should not deter us from this Constitutionally mandated undertaking by thinking the substance and not merely its implementation is flawed. Transformation is necessary but we merely need to reconsider HOW we implement it.
Apart from the above, I wholehearted agree with your post.
@ Mark
“if, within three hundred years from now, there are more competent white judges than black judges, will it then be ok to appoint all these competent white judges or will transformation still play a role in the judicial appointments?”
This is truly a “menziacious” question.
Let future generations look after themselves, I say.
In the meantime, South Africa cannot afford to waste the astonishing judicial talent it already has. How will we justify to our grandchildren not having made Hlophe JP, arguably the finest mind since Justinian, our CJ?
And, although he may not yet have attained transhistorical significance, I deem it also a tragedy too that the forces of RACISM have derailed the opportunities of Motata J.
Anonymouse, I think its more likely an evolutionary question. However, it poses an important question. How do those who understand racism as a juvenile and uneducated response to differences, survive, happily. The levels of frustration, fear and loathing in present day SA are certainly unprecedented in my life.
Parents who considered prejudice, for any reason, to be the ultimate sin, raised me. Its mind-boggling, the stress and obsession and ramifications of racism in South Africa. Perhaps I should say… mind blowing. Actually, having come from the west a decade ago, I’m somewhat stunned by it’s daily all encompassing relevance.
My sympathies go out to all South Africans. Maybe the coming holidays can cheer us.
I read a quote by Margaret Thatcher today that rang a bell, although many of her other quotes and actions during her rule did not. It is as follows:
“It is not enough for a constitution to be written on paper,
it must be established in the heart.”
I appreciate the views which apparently stemmed from my initial comment, especially Anonymouse which, in the main, is supportive of my contentions. Sine certainly wins hands down in the bluster stakes and appears to to protesting too much. We do not need interminable posts to refute my remarks, by which I stand. In any event, we are digressing from Mr. Myburgh’s article which amply demonstrated the hazards of any sort of social engineering by using spurious and selective history to justify patently racist (and sometimes sexist) criteria in judicial appointments. To regard the Constitution as as a sacrosanct, and inviolable treatise and therefore an infallible yardstick to defend arbitrary racist judicial appointments is disingenuous in the extreme. The Constitution is replete with facile, trite and turgid phraseology and it should have been foreseen that the gang presently in power would have exploited any linguistic ambiguity for their own racist ends – and that is precisely what they are doing.
The intent of my initial comment, which may well have eluded Sine and prompted him to try and indoctrinate me with a latter-day, more politically expedient view of SA history, was to show that a superficial utterance like “to redress the wrongs of the past” cuts both ways and is no justification for the practising of further racial discrimination – in this case against would-be white judges. This is the essence of what Mr. Myburgh was saying. De Vos, in turn, chose to misconstrue the message completely so as to look cute in the eyes of the new ruling order and his argument is simply derisory. Using that nauseating euphemism “transformation” as a justification for naked racial discrimination and obsessive social engineering practices is indefensible, no matter how much sophistry or spin is applied. To defend such arbitrary executive behaviour is simply an admission that the discrimination practised by the Afrikaner Nationalists was in fact acceptable.
This is all I want to say on the subject.
Graham, thank you for your thoughtful post.
I agree that Marshall’s piece is appallingly superficial. To fail even to acknowledge the problem people like Cachalia have with the mantra of judicial “transformation” is unforgivable.
[See Dyzenhaus, SALJ (2008) on the manipulation of the fuzzy-wuzzy term "transformation" to further reactionary racial-nationalist goals.]
That being said, I think your equation of the attaching of some weight to race in judicial appointments with apartheid discrimination is not supportable. No-one can seriously argue that a colour-blind appointment protocol could in the short or medium term produce a judiciary with any real legitimacy.
It is disturbing to see that even Khaye Nkwanyana of the Young Communist League is jumping onto the non-racialist bandwagon much beloved of the white liberals. He writes that anti-racist discourse “should [not] be used to promote incompetence in our public institutions such as state utilities by our fellow black cadres.”
Notice how Nkwanyana, like Myburgh and his fellow white liberals, implicitly associated “blackness” with “incompetence.”
Disgraceful.
Mikhail – “Disgraceful”?
How about – “Insightful” or “Inciteful”?
Of course I do not agree that “blackness” = “incompetence”, there are too many “black lawyers” and “black judges” (and “black magistrates”) that are extremely competent. However, some of the deployed “black cadres” (albeit the absolute minimum of them) are incompetent – don’t get me wrong, many “white lawyers”, “… judges” (and “… magistrates) are also incompetent, in the extreme – but for the cynics, it is much easier to pont figers at the new (“transformed”) appointments that are incompetent and to say: “See, I told you so.” You see, when a few magistrates (about 10 / 600) misappropriated state funds to build swimming pools and lapas at their private (or official) residences, the whole thing was immediately dubbed the “magistrate lapa scandal”. So, if one black judge (or magistrate) fouls up, transformative appointments amount to a scandal in the eyes of public – this is where Nkwanyana slips by equating blackness with incompetence.
As long as racial under- (or over-)tones are present in the appointment procedure for judges, we will not have a totally non-racial society and the bench will not be respected. Focus must be placed on competence, and even the white incompetents must be excluded. On the bench there is simply no room for the philosophy that for appointment one must merely have the “ability to become competent”. On the bench 9esp the criminal one), one works with lives of people, and one should at least have a good level of competence to do the job of a judge.
Anonymouse says:
December 5, 2009 at 7:31 am
Of course I do not agree that “blackness” = “incompetence”, there are too many “black lawyers” and “black judges” (and “black magistrates”) that are extremely competent. However, some of the deployed “black cadres” (albeit the absolute minimum of them) are incompetent – don’t get me wrong, many “white lawyers”, “… judges” (and “… magistrates) are also incompetent, in the extreme – but for the cynics, it is much easier to pont figers at the new (”transformed”) appointments that are incompetent and to say: “See, I told you so.” You see, when a few magistrates (about 10 / 600) misappropriated state funds to build swimming pools and lapas at their private (or official) residences, the whole thing was immediately dubbed the “magistrate lapa scandal”.
——————————————————————————————————-
Sounds to me like you’re saying that generally the transformation processes re the judiciary are working reasonably well.
(Notwithstanding Dworky’s requirement of 15 years commercial flying experience).
Nkwanyana is correct, if Dworky’s quote is correct – some of the deployments are nothing short of atrocious.
It’s a dichotomy – either the deployees advance transformation or they don’t.
Many have even reversed some of the advances that we have made or ought to have made since our democracy was established.
the worse thing you can do, is to try to reason with the racist abut equality, it is a pity that most have been raised that way and everything black to them is evil and incompetant i do not believe that we will ever have a rainbow nation where everybody lives in harmony,that is a fantacy,it will never happen the beneficiaries of aparheid regime(not all of them) would like the status quo to remain
@Graham
Thanks for your post bro. I couldn’t help but notice how your post avoids the fact that “transformation” is not only about politics but it is authorised by our Constitution; it is compulsory. The Constitutional Court has also held as much. Thats why I’m saying it’d be better for all of us to facilitate & participate in its implementation to shorten its lifespan & to ensure that it wont be used by “some among us” for their own narrow agendas. Fighting it is really a futile exercise.
Maggs, what you fail to understand is that even to list “experience” as a relevant criterion for judicial appointments in racist in effect, given out history.
That is why we must recognise what most practicing lawyers the world over tell you: that wise adjudication is not a function of your “experience.” It is rather dependent on an ordinary ability to apply one’s God-given intuition, guided by UBUNTU.
Just last year, I designated as my neuro-surgeon a relatively recent graduate of Wits medical school. I was frankly not interested in being operated on by an old-fogey with years of so-called “experience”. I preferred to give the opportunity to a younger doctor I met by chance in the hospital cafetetria. What an inspiration! Fresh out of medical school, I especially appreciated that she was au fait with the latest research findings, as published in 2007/8 editions of leading medical journals.
Mikhail Dworkin Fassbinder says:
December 6, 2009 at 7:01 am
With your reputation I am not surprised.
The choice between and old fogey and a fresh young au fait is a no brainer.
But she will have to wait past Tuesday of course before she targets your neural activity.
p.s. How are you?
BTW Dworky,
You pulled a Simelane on us when you told of your horrid experiences in Quatro.
Nothing about you nor the knot tying trick is mentioned at all : http://www.timeslive.co.za/sundaytimes/article221251.ece
Maggs, funny you should mention that. Trewhela begged me for an interview last week. I told him I was not interested in talking to him, and that I regarded the whole thing as a purely cultural affair.
Dworky,
You’re a big fat liar!
I think that you were one of the torturers at that place, rather than having been tortured.
Now you’re playing the victim.
Eish!
Simelane appointment an ‘aberration’
2009-12-07 09:54
Johannesburg – Archbishop Emeritus Desmond Tutu on Monday called on President Jacob Zuma to reverse the appointment of national prosecutions boss Menzi Simelane, describing it as an “aberration”.
“The appointment of advocate Menzi Simelane as National Director of Public Prosecutions is a setback for the integrity of South Africa’s post-apartheid legal system,” Tutu said.
“Simelane’s integrity has been questioned from within his own political party and by his profession.”
Unfit for the job
Tutu said a statutory commission, headed by senior ANC stalwart Frene Ginwala, deemed him unfit for the job.
Tutu was referring to the Ginwala commission of inquiry into whether Simelane’s predecessor, Vusi Pikoli, was fit to hold office.
In her findings, Ginwala said it seemed that Simelane had tried to interfere in the National Prosecuting Authority (NPA) decision to arrest ex-top cop Jackie Selebi for corruption.
She came to this conclusion after Simelane testified at the hearings. But Justice Minister Jeff Radebe last week said Simelane was never given the opportunity to respond to Ginwala’s accusations.
However, Tutu said the government’s ignoring of Ginwala’s finding “besmirches the office of the NDPP [National Director of Public Prosecutions].”
“The appointment of one whose ready willingness to act on political instructions has been questioned by a statutory commission does nothing for people’s confidence in the law,” said Tutu.
Complaint against Simelane
The Pretoria Bar Council is currently investigating a complaint against Simelane, related to his appointed as NDPP despite the Ginwala commission findings.
Tutu said: “To witness the professional body of South African advocates – Simelane’s peers – considering disbarring him is a national embarrassment. This distresses me deeply.”
He said he had raised his objections with Radebe and Deputy President Kgalema Motlanthe while Zuma was out of the country.
“I now appeal to President Zuma to do the right thing. Since his appointment, he has done much to restore the confidence of South Africans in government. But the appointment of advocate Simelane is an aberration.
“The appointment should be reversed,” said Tutu.
- SAPA
Source: http://www.news24.co.za
Snowman, thanks for that. The Arch certainly has my respect.
@ Snowman and Leigh
Wow. I see that the “little devil” (according to President Robert Mugabe) has added his voice to the many voices against Simelane’s appointment. Hope it will make a difference this time around.
I would just have called it an “abomination” rather than an “aberration” – but I agree with the “Rum&Coke-drininking retired Arch Bishop” in all respects.
Sine, I don’t think the Arch’s voice will make much of a difference. The ANC does tend to ignore public criticisms regardless of how sound and serious they may be. But I still respect the Arch for speaking his mind.
@ Leigh
I am seriously tempted to concur with you having regard to the past incidents. One way in which he may try to have an inlfuence is to keep quiet on trivial issues or those that are being dealt with elsewhere and focus on serious issues. That way people will not grow insensitive and become deaf to his voice but may listen with improved attentiveness…
Sine
Are you suggesting that this is one such “trivial” issue?
@ Mzo
No.
@ Mzo
I deserve an award
because ‘andikhange ndiphendule into ende’. Yinto enqabe kakhulu ke leyo mvanje. Mhlambi abantu bathanda ukuba ngamaciko, or is it amayilo?
Sine, I will agree with a principle I think can be infered from your post: it can be unwise to comment on trivial matters inasmuch as doing so could render comments about more pressing issues less forceful. But that being said, I do not think that the Archbishop comments on petty matters.
On a related note, I am not sure how much influence the Arch actually has. And given that he seems to be an honourable sort of bloke, I am not sure how much influence he could hope to enjoy given that the ANC runs this country. That is, there is a distinct paucity of nobility within the ANC camp these days and in camps of that nature, someone like the Arch would be a bit of a misfit.
7 December 2009
Statement by Archbishop Emeritus Desmond Tutu
TUTU: SIMELANE APPOINTMENT AN ABERRATION THAT SHOULD BE REVERSED
“The appointment of Advocate Menzi Simelane as National Director of Public Prosecutions is a setback for the integrity of South Africa’s post-apartheid legal system.
“While it would be naïve to expect any government to appoint a director of prosecutions politically opposed to its policies and programmes, the appointment of one whose ready willingness to act on political instructions has been questioned by a statutory commission does nothing for people’s confidence in the law.
“South Africa built its constitutional democracy on the rubble of an apartheid system that had the subversion of law as a founding principle. The use of “independent” legal instruments to destroy political opposition was a hallmark of apartheid and a thread that ran through the hearings of the Truth and Reconciliation Commission.
“Surely we should have learned from the past. Surely, after what we have been through, we should place a premium on ensuring the integrity and impartiality of prosecutorial decision-making.
“Simelane’s integrity has been questioned from within his own political party and by his profession.
“Appointing a man deemed unfit for the job by a statutory commission led by senior ANC stalwart Frene Ginwala besmirches the office of the NDPP. To witness the professional body of South African advocates – Simelane’s peers – considering disbarring him is a national embarrassment. This distresses me deeply.
“Questions on the constitutionality of the appointment will be debated and adjudicated by people who have more knowledge of the law than I have. I have raised my objections to this appointment with Minister of Justice Jeff Radebe and Deputy President Kgalema Motlanthe (President Zuma was in Trinidad & Tobago.).
“I now appeal to President Zuma to do the right thing. Since his appointment, he has done much to restore the confidence of South Africans in government. But the appointment of Advocate Simelane is an aberration. The appointment should be reversed.”
Somehow I doubt that the Arch made a meaningful impression. The chief reason as to why I harbour this doubt is that Radebe has a positive talent for selective reception. That is, when he reads, he sees only what he wants to see. And when he listens, he contrives to block out that which he is not inclined to hear. A second reason is that Radebe has already demonstrated repeatedly that he has the gall to resort to the clumsiest displays of advocacy in order to make a show of justifying his preferred courses.
The Arch is a good man. But in much the same fashion as his good character, his good sense is simply wasted on the Minister.
@ Leigh
“That is, when he reads, he sees only what he wants to see.”
I hope you’re not referring to Mzo’s reading of my post about the need of the Arch to avoid commenting on trivial issues…
Chris said:
]you must not only have trustworthy judges,
]you must have judges who are actually trusted by those they serve.
Yes, democracy follows, rather than leads.
Which is what Leigh said too.
Mark wrote:-
]Africans develop slower intellectually than europeans.
This is a simplisticly wrong view of evolution. Apes are “equally developed” as me.
We’re both developed to “stage-2009″; just along different routes.
A man/woman is not a less developed woman/man, like a child is a less developed adult
As the man/woman will never develop into a woman/man, so also “africana/europeans”
can never DEVELOP into “europeans/africans”.
And whereas it’s true that they “didn’t even have the wheel”, “we” don’t even know
what we don’t know what goes on in their minds to keep then so happy – apparently?
And yes, the “300 years of racial oppression” didn’t cause them to eg. NOT have
ocean going ships. But they’ll say ships are irrelevant, you’ve destroyed our ZAZ.
But since “we” don’t even know that we don’t know what ZAZ is, we can’t argue.
King Zwakala said:-
]”…transformation is more to do with revolutionalising the mind of
]the person than to replace one race with another.”
So he wants to muntufy the mzungus, despite knowledge of how the muntus resisted
learning afrikaans – and rightly so. History shows that the Tibetans, Kurds,
Basques will not abandon the desire for APARTness.
Sine said:-
]”I cannot post here as my computer tells me there is an HTTP error.”
The “sysytem” is malfunctioning & returning “others” URL too.
Just “work around the crap” like all else in Zanzi.
Sine says:
December 7, 2009 at 13:44 pm
@ Mzo
I deserve an award because ‘andikhange ndiphendule into ende’. Yinto enqabe kakhulu ke leyo mvanje. Mhlambi abantu bathanda ukuba ngamaciko, or is it amayilo?
————————————————————–
Lest I be accused of having anything against Afrikaans or of being a hypocrite, I think it’s important that I once again call on Prof not to allow people to post things in any other language but English
:). (I made a similar request some time ago when people started sending posts in Afrikaans).
Otherwise, I agree with you, you do deserve the award coz we lawyers really do have a tendency to write a long essay when we could have used just one line.
@ Mzo
Thanks bro. Next time I post something in any language other than English, I will provide a translation just like I have been doing…
“Since his appointment, [President Zuma] has done much to restore the confidence of South Africans in government.” Tutu
I almost fell off my chair when I read that! Is this the Archbishop’s apology, hot on the heels of Pierre’s?