Humans – despite our intellect and capacity for feeling and abstract thought – have a tendency to talk and think in slogans. Life is complex and time is of the essence, so only the most vigorous (and tiresome) intellectuals (no, I am not thinking of Xolela Mangcu) always make an effort to interrogate the terminology they deploy every day when they try to make themselves understood. This is not always such a bad thing because often most of us have a common understanding of what these slogans mean and use them to make our lives easier.
But sometimes the same slogan can mean wildly different things to different people, which allows people to think that they really agree with one another when in reality they are worlds apart. Slogans which attempt to encapsulate a laudable goal but ultimately have a fuzzy meaning can also be used by unscrupulous people to achieve nefarious ends. One such a slogan – much in the news lately - is “transformation”.
Most of us constitutionalists, for example, think that “transformation” is a good thing. Like motherhood and apple pie, only fringe elements will dare to suggest that transformation in and of itself is problematic. Although the term is not used in the Constitution, academics and judges of our Constitutional Court have often stated that ours is a transformative Constitution and have emphasised the ethical and political necessity of such transformation. But, as it turns out, we do not share a common understanding of what this term might mean.
Justice Malala’s column this morning in The Times in which he deals with the talk of “transformation” of the judiciary and the new appointments to the Judicial Services Commission (JSC) gets to the heart of the matter:
Both the JSC and the judiciary are likely to be filled with some of the most conservative, gender-insensitive, undemocratic and intolerant individuals in society — essentially people not cut from the cloth of the ANC’s own fabric. That reality will derive from the fallacy that because someone is black, and ticks the space in the “transformation” box, then they hold progressive views.
The truth is that not all black advocates are fit to be judges. There are blacks all over the country and in the judiciary who do not embrace the non-racial, non-sexist, democratic values enshrined in the Constitution. There are potential judges who would very easily turn against our progressive laws on abortion and homophobia, for example. Being black does not mean an advocate or judge upholds the values enshrined in our Constitution.
Blacks are not a special people. We laugh and we cry, we oppress and are oppressed. We are human. Among us blacks there are some of the most conservative people and perspectives one can find. Not all black people are progressive….. There was a chilling moment last week when Senior Counsel Torquil Paterson appeared before the JSC in Cape Town. Ntsebeza, according to the Sapa report, asked Paterson how his (Paterson’s) potential appointment as a judge on the Eastern Cape bench could possibly further transformation, because he was white.
“Ntsebeza insisted, until the advocate conceded, that ‘the demographics would not be enhanced by appointing more white judges’. “‘That’s all I wanted you to say,’ said Ntsebeza.”
Now, I don’t know who Paterson is. However, if Paterson is excluded only on the basis that he will not “enhance the demographics”, then there is a problem here. Worse, if a black candidate is appointed merely because he or she enhances the demographics, then we are truly in trouble.
This is the danger. We fail to ask ourselves what “transformation” truly means, and make black faces the only measure of how far we have transformed.
I could not agree more. We need to ask ourselves, what do we talk about when we talk about transformation? As this is a question now hotly contested in the legal field, I will focus on “transformation” in the legal arena. There seems to be at least three (but probably many more) different answers to this question.
First, there is the view espoused by individuals like Dumisa Ntsebeza, which seems to view “transformation” as a demand for the transfer of political, legal and economic power from one racial elite to another, a view based on a kind of race essentialism. This group of individuals bristles at the injustice and indignity of a legal profession and system that is still largely dominated by white individuals and the supposedly superior values of the white minority culture.
Noting – correctly – the economic and cultural marginalisation of black lawyers and the kind of snooty arrogance of some white lawyers, and believing that one’s race determines who one is, what one thinks and how one will act, this group sees “transformation” purely as a “numbers game”. Black lawyers must replace white lawyers in leadership positions at all levels of the profession and in the judiciary to effect “transformation”. For this group “transformation” is really about a transfer of power from a white elite to a black elite within the existing system, so the better for the black elite to share in the spoils that rich whites now selfishly try to keep for themselves.
A second (to my mind, better) view, espoused by Malala and many constitutionalists, is that “transformation” is really about the achievement of a society that embraces the progressive values enshrined in our Constitution. While racial and gender representation in the legal profession and the judiciary is important, the most important goal of transformation is to create a system which respects diversity and the human dignity of all – regardless of their race, sex, gender or sexual orientation.
Race is just a construct and does not tell us with certainty who a person is, what he or she will think, or how he or she will act. Unlike the first group, this second group casts a critical eye on the social relations entrenched in our society and see patriarchy, sexism, homophobia and a lack of respect for difference and feels that “transformation” must fundamentally address the deeply oppressive traditional value system (ironically shared by many white and black patriarchal elites) and must help move us into the light of a modern, progressive state.
But there is also a third view, I think, which attempts to marry aspects of the two previously discussed views of “transformation”. On the one hand this view rejects the race essentialism and the naked and self-serving power politics of the “race transformationists”, while acknowledging that “transformation” is also about economic power and the structural inequality built into our free market, elite-dominated, system of government. Race does not tell us everything about who a person is, what he or she might think or how he or she will act, but how and where one fits into the system will tell one much about the life chances of that person. And, of course, given our history most of the people at the bottom are poor and black.
According to this view, the system as a whole needs to be transformed. While this requires a jettisoning of the patriarchal, sexist and homophobic values so deeply entrenched in our society, it also requires a fundamental change in the way we are governed and our society is structured. The system that rewards (black and white) insiders in government and in private business (where CEO’s and senior managers block pay raises for their workers while raking in obscene salaries and bonuses) help to create and keep in check an underclass and fundamentally retards the life chances of those who are not lucky enough to have been born in privilege or to have acquired the trappings of wealth through political connections and old-boys networks.
In this system, many South Africans – no matter how talented, intelligent or even wise – will never get the opportunity to study law, let alone open a practice at the bar and get appointed to the High Court.
“Transformation”, for this group, will only be meaningful if it addresses the fundamental unfairness of the system which irrevocably and tragically precludes a poor, black, rural girl-child (to use one example) from accessing the same life chances as the children of Tokyo Sexwale, Zwelenzima Vavi, one of the Oppenheimer clan or Judge President John Hlophe. Whether the law, the Constitution and the judiciary (regardless of its racial or gender composition) is a stumbling block to this third kind of “transformation” – well – I am still making up my mind about that.
What do YOU talk about when you talk about “transformation”.
Spot on Prof and , I hate to say, Malala, however let me add Transformation is indeed also about the demographics otherwise the status quo of only white faces in top management remains!
I think Malala is correct – although demographics may (and should play a role) in addressing corrections of past inequalities, demographics should not be the alppha and omega of transformation. The concept of transformation embraces a paradigm-shift, from the values (held by either the opressor or the oppressed) of the past to the values of the future (held by those who believe in a democratic society based on dignity, equality and freedom for all – not only a white/black/brown elite).
Lest I forget – demographics is a very tricky horse to ride, especially when national demopgraphics are compared to regional demographics. Obviously the demographics in KwaZulu-Nnatal will be different from that of the Eastern Cape, the Western Cape, the Northern Cape and so on. Which must prevail – national or regional demographics? This is a vexing question, especially as far as judicial appointments are concerned.
The Professor outlined three conceptions of transformation. I tend to think that any tenable stance thereon would probably have to draw from both the second and third of the conceptions which the Professor discerned during the course of his latest piece.
That is, changing the racial composition of the more influential spheres of our society – including but not confined to the judiciary – is of itself a fairly worthy goal given the desirability of a clout-wielding eschelon that is representative of our society.
But of course, any definition of transformation that hopes to pass muster in a state which recognises constitutional supremacy must embrace the view that transformation should involve striving towards the establishment of a society that reflects constitutional values.
And finally, I would think that transformation would involve systemic changes that would go to seeing opportunities distributed far more equally and also equitably in our society.
The Professor also posed the question of whether our law, our constitution and our judiciary make for some sort of stumbling block to his third conception of transformation. But he declined to offer an answer thereto given that he has yet to make up his mind. I must concede that until this morning, I had not even thought of the question. So I would caution anyone to look eslewhere for clarity on that score.
But given that transformation is, as the Professor has made out, quite topical, I would ask some open questions which some may generously take a little time to consider.
To depart somewhat from the question which the Professor declined to answer: if we were to assume for a moment that courts are to play a part in the third conception of transformation, what means and advantages would the courts need to enjoy in order to do so?
And further, what sorts of concrete goals might the courts seek to achieve in endeavouring to promote the third conception of transformation?
I have peace with a transforming process that combines all three definitions using large doses of commonsense.
Rabid application of the first kind leads quickly to Zimbabwefication, where the farming community is now succesfully fully transformed, but unfortunately no farming actually takes place anymore.
Transformation of the third kind will unfortunately require a bloody socialist revolution as fat cats of any colour do not surrender their accumulated fat easily.
Prof,
Before I venture my opinion on the issue at hand, I am troubled by how you just throw around statements without, it would appear, interrogating the correctness thereof.
I cannot believe that you decide to group Ntsebeza SC in a particular group simply on the basis of the question he asked a candidate at an interview. As far as I am concerned, the question could have been asked by any of the Commissioners (black or white) in an effort to get the candidate’s view on the issue – it does not mean that they – the person asking the question – (as the media incorrectly reported in bold headlines) believe “whites should not be judges”. That you seem to believe this media report is indeed a shame.
I do not purport to speak on behalf of Ntsebeza SC but I do know that none of the organisations he belongs to and holds positions in believe in the first group you have identified, notwithstanding what people out there might want to believe.
Mzo
Were you there during the interviews?
I was.
And I can tell you, Ntsebeza went way, way beyond merely inquiring into the views of the white candidates.
It almost became a joke. Black candidates on, lull, white candidate on, wait for the fireworks.
I commented at one stage that Ntsebeza’s ATTACKS, because that’s what they were, bordered on hate speech.
Pierre is quite correct when he suggests that for Ntsebeza it’s all about the numbers.
He even had the gall to take on Patterson about a decision to block a black man from joining the bar, when Patterson had nothing to do with the decision.
This black man, it appears, had stolen money from his clients.
Ntsebeza went on and on and on at Patterson, until Moerane intervened to say that actually he was glad the man was blocked, becuase he had also been one of his victims.
on another occasion Langa CJ had to cut Ntsebeza off when his questioning (if you can call it that) ventured into the patently absurd.
No, sorry to say, one could not leave that room with any idea other than that for Ntsebeza it is about colour and nothing else.
Oh, and another thing.
This is speculation, but I am pretty sure Langa CJ had had a chat to Ntsebeza about his aggressive questioning of white candidates.
Because when Binns-Ward came on, Ntsebeza felt it necessary to explain that actually he meant well when talking about transformation.
sure, sure.
it was a bit too little too late though.
like patterson said – the reason white judges don’t apply, is because they don’t want to go through what he had to endure under ntsebeza.
and what did he do to deserve such rude, disrespectful treatement?
he was born with a white skin.
eish, do you see the problem? it’s history all over again, my friend.
Mzo // Jul 27, 2009 at 2:58 pm
but thats the thing it was a rhetorical question, it came across more of a statement actually and a stupid one at that, ha ha I Ntsebeza have snooked you with my brilliance of a question ha ha ha. I have now added value to this interview ha ha ha, have you signed up today to my AFT group?
com on give me a break….if Ntsebeza was serious about transformation, he could of asked the judge about his thoughts or views on africanization of the law esp from a prospectus of a white man, that would of been more value.
heres a question,
how is appointing more black africans going to help with the demograph of the country? the last time I checked, arnt there chines people here, indians, colored, surely they also deserve a fair representation on the bench? Why isnt there a drive for them to be up in the highest places of Judiciary?
anyways that would of been my snappy comeback to Ntsebeza
Transformation?
hmm, to be honest, If we are to ask the people who are currently rioting because of the lack of service delivery if they are rioting because of the demographics of the institutions they expect service delivery from or because they are just plain inept? What would the answer be.
I think perhaps we should start focusing more on a working judiciary than a colourful one. Transformation as seen by the ANC is something that is race obsessed. Perhaps the second example Prof mentions is one that I would hope we implement, but the question, what do I understand by the phrase? Pure race obsession…
Well yes, we do talk about this with our valued friends.
Consensus within our discussions as follows: You can know a man/woman by her actions… you can know a judge by his/her decisions…. simple really.
And some of you jumped down my throat when on this forum I called Ntsebeza a “token silk” and “bubblegum lawyer” who represented Judge President John Hlophe rather pathetically.
(Judge Hlophe deserved better.)
QED.
I don’t think there is anything wrong with an analytical division into three categories of transformation as desbribed by Pierre de Vos, but what is problematic is the labelling of people and dividing them into little boxes. In particular, this dichotomy of conservatives and progressives and that somehow Dumisa Ntsebeza would fall into a box of non-progressives – only playing the number game, while Pierre would like to see himself as a progressive. To be honest, it’s all not that simple.
While I wasn’t at the JSC interviews,
Dumisa Ntsebeza can’t be labelled on the day’s action only. He has made a huge contribution to this country fighting apartheid – in prison for his beliefs and ideals of justice and human rights. It borders on the absurd to pretend that all he is interested in is the simple number game of replacing white with black. May be if the interviewee would have tried to understand the nature of the question better and answer it straight and honest – and then the applicant could have added that transformation means more than demographics and explain his position. May be Ntsebeza was just probing to find out how well the person had thought about it all. Well that is speculation, but the point is that it takes two to tango – and this seems to have been more of a boxing match.
Have you ever read The Unfinished Bussiness which he wrote with Terry Bell? I think whites should reflect much more critically on themselves and on their understanding of transformation.
Charlotte, sorry.
Ask for a transcript of the proceedings.
I am not labelling Ntsebeza on the grounds of one day.
It was over three days, and it was not an interview, it was several interviews.
Also, if you read the transcripts, you will see it was no case of “probing”.
So not.
“May be if the interviewee would have tried to understand the nature of the question better and answer it straight and honest – and then the applicant could have added that transformation means more than demographics and explain his position.”
maybe he could have actually put questions to interviewees as opposed to launching ad hominem attacks.
then, perhaps, they could try to understand.
Charlotte
I agree with you. For example I felt the quote I read that was attributed to Judge Griesel when he was asked a similar question was an appropriate way of dealing with the question. End of story.
The Head of the School of Law, Professor Angelo Pantazis, cordially invites you to a public lecture entitled
“CAN JUDICIAL INDEPENDENCE SURVIVE TRANSFORMATION?”
to be delivered by Judge Johann Kriegler on
Tuesday 18 August 2009: 6pm for 6.30pm
Chalsty Auditorium, School of Law, West Campus, University of the Witwatersrand, Johannesburg
RSVP: Ms Julie Dunsford by 13 August 2009. Tel: 011 717-8468 or Julie.Dunsford@wits.ac.za
Pierre, I still think your talk of “transformation” veers close to “rainbow” jurisprudence. The “values” of the Constitution are, in themselves, indeed the equivalent of Motherhood and Apple Pie.
No-one in her right mind proclaims that “dignity,” “equality,” “respek” etc are not splendid things. But he very fact we converge on these values is evidence that they are largely indeterminate.
The real debate only begins when we have to decide how to give effect to these values in practice. The racial nationalist is committed, as you suggest, to something resembling the economic status quo, but with an African elite ascendant. The free market ideologue will tell you that “equality” and “dignity” are best achieved in a colour-bind market economy; the socialist will argue that any system in which the means of production remain in private hands is inherently destructive of dignity and equality.
You, as a social democrat, believe the “values” of the Constitution are best secured in some kind of mixed economy, in which race-consciousness is essential but transitory element.
I do not know which of these is right. What I am convinced of is that which of these visions one embraces is not a function of whether or not you believe in the “values” of the Constitution, The struggle is between ideological positions, each of which employ the Constitution as post-facto legitimations of quite fixed commitments.
Michael, forgive me if my understanding of your last post misses the mark, but you seem to me to say something of the following: the debate about transformation will only truly begin once the investigation turns to the determination of which of various competing ideologies is the most convincing.
I hope I have the right of your view. In the hope that I do, I would say further that you have also tendered brief explanations of three ideologies.
It should strike anyone as being clear that (a), the present debate would probably, as you appear to me to advance, come to some sort of toss up between competing ideologies and (b), that such a discussion hardly gives itself to superficial investigation.
But I would propose to briefly consider one line of reasoning down which we might venture. I shall offer a conception of the relationship between dignity on the one hand and equality on the other and thereafter propose a direction in which we could steer the current discussion.
Over the weekend I began reading a piece penned by Professor Fagan. To offer a brief statement of how I undertsood some of the author’s views: people have dignity. They have dignity either (a) purely because they are people or (b), because people have dignity-conferring qualities such as rational agency. To have dignity is to enjoy inherent value. And because all people have inherent value, all people are equal. This is so either because (a) inherent value is incomparable or (b), because people enjoy the dignity-conferring quality in equal measure. That which is valuable is deserving of respect and as all people have equal intrinsic value, all are equally deserving of respect.
The line of reasoning that I would consider runs as follows: which of the three ideologies which you outlined best gives effect to the forgoing conception of dignity and equality? I for one am prepared to assume that the first of those ideologies, allowing as it does for some sort of elite, can be dismissed. Although I will happily concede that I have not given the first of the three ideologies the critical attention it may deserve.
But on the assumption that it can properly be dismissed, the question becomes: would a colour-blind market economy give better effect to the above conception of dignity and equality than the removal of the means of production from private hands?
Leigh, you asked: “Would a colour-blind market economy give better effect to the above conception of dignity and equality than the removal of the means of production from private hands?”
I really do not know how to answer this question. Partially, the problem is empirical. Who is to say whether, in the long run, capitalism is more conducive to equality than socialism?
I tend to agree with Rawls that equality and productivity will at some point come into tension; and that the best society is that in which only that degree of inequality is tolerated that is necessary in order to generate the incentives necessary for enterprise.
As for “dignity,” I am at a loss. Perhaps I am just obtuse, but I just do not get all this rhetoric about intrinsic worth, etc. It all strikes me as suspiciously Judeo-Christian in flavour – not surprisingly, given Kant’s provenance …
I tend to support the 2nd type of transformation. The 3rd is a good idea but it involved an overhaul. Its essentially, I believe, what the DA means by an open opportunity society and what the ANC is hoping to get through toying with the balancing beams. So, it seems that the 2nd type is transformative and the 3rd is what our goal is as it involves many other steps 9starting from grade 1).
I then turn to Charlotte and Mzo.
Mzo never got around to commenting on the topic. Charlotte amazaed me by defending Ntsebenza SC. If you truly think about it, there is only one way of looking at those questions (ATTACKS). If it had been a real question then it may have encouraged thought and showed that transformation had to do with one’s approach to law and not simply race.
Ntebenza’s apatheid track-record does not reflect his views on transformation. the values were good when they were being fought for, it seems they’re hard to live by. As an advocate he should know that what we should have is people who THINK in a way that brings about positive change, he should – as a black man – know that there are black people who’s approach runs counter to the spirit of the Constitution, or maybe he is one such person…
Question may deal with matters of interest, moot topics, a question that may indicate a candidate’s prejudice (there are others beyond racism) and not try to embarass him or her. Child protection, courts’ role in crime control, how to most effectively reduce the work of the courts, sex-work, judicial ethics etc
Michael, you say that you did not know how to answer the question. Actually you answered it far better than I would have. And I shall happily concede that it is hardly the sort of question that lends itself to straightforward answers. And it is problematic for precisely the reason which you mentioned.
If equality can be taken as embracing equal enjoyment of resources, then I agree that equality and productivity are bound to compete.
And as regards intrinsic value: I think you are right to suspect a Judeo-Christian flavour. I hope I do not depart too far from the topic here, but I do not think that talk of intrinsic human value can be divorced from investigation of transcendental reality.
I never thought this question would actually be addressed. Think Malala made a huge step by addressing this issue.
Prof. PdV wrote:-
> of what these slogans mean and use them to make our lives easier.
Yes, that’s exactly the same justification for ‘generalisation’; which
you previously condemned
> Slogans which attempt to encapsulate a laudable goal but
> ultimately have a fuzzy meaning can also be used by unscrupulous
> people to achieve nefarious ends.
Indeed ! PeeCee-talk is a tactic favoured by leftists, because they
excel in ‘language’, whereas rightists excel in deductive logic.
> Although the term is not used in the Constitution, academics
> and judges of our Constitutional Court have often stated that
> ours is a transformative Constitution and have emphasised
> the ethical and political necessity of such transformation.
> But, as it turns out, we do not share a common understanding
> of what this term might mean.
Which confirms my view that users of the term are leftist wind-bags.
> We need to ask ourselves, what do we talk about when we talk
> about transformation?
Well the leftists, don’t even WANT the define ‘racism’; because
leaving it fuzzy allows their PeeCee-talk-fear game to work.
student wrote:-
> The Head of the School of Law, Professor Angelo Pantazis,
> cordially invites you to a public lecture entitled
“CAN JUDICIAL INDEPENDENCE SURVIVE TRANSFORMATION?”
> to be delivered by Judge Johann Kriegler on
> Tuesday 18 August 2009: 6pm for 6.30pm
>Chalsty Auditorium, School of Law, West Campus, University of
>the Witwatersrand, Johannesburg
Get real !! We don’t go out after dark in Joburg.
Besides, why can’t he use the inet, like prof. PdV ?
Leigh wrote:-
> I do not think that talk of intrinsic human value can be
> divorced from investigation of transcendental reality.
Is that why I can’t understand the bantu & afrikaaners
when they go on about ‘respect’ and that you must say
“how are you” because ‘it shows that we are *human*’:
it has to do with the spirits of the ancestors ?
@PdV: What do YOU talk about when you talk about “transformation”.
In the 80′s when I used to visit Zambia, they used to look over the fence
and say “we’d better be carefull, else our money will become worthless,
like Zaire’s”.
Later the Zambian currency collapsed via inflation, and the Zimbabwians,
looking over the fence said “we’d better be carefull, else our money…”
Recently some in Zanzi, have looked over the fence and said “we’d better..”
So Zaire, Zambia, Zimbabwe, Zanzi are like a pipeline/4-carriage-train
transforming towards the natural/stable condition of a
sub-saharan African/Haitian [it's about race/genes, NOT geography] society.
The ‘white settler’s visit’ to sub-saharan Africa is just a short event in
history, and the resulting contamination is being washed out with time,
i.e. transforming. You know: the ‘African re-naissance’ ?
“…perpetuating an Afro-pessimism born out of racism..”
No, an Afro-realism born out of observation and confirming racism.
Before you define transformation, you should define the more fundamental
concept: racism: “the belief that mental attributes differ per race [and
gender] as determined by the genes — statistically of course — per
‘the bell curve’.”
Transformation of the judiciary is necessary. Too many of the current judges are aparthied hold overs and still hav e aparthied attitudes. I was involved in a case in the high court. The judge was blatant in his disrespect for the African advocates and the African complainants. However, he almost fell over himself praising and advocating for the white advocates and their rich clients. The disparate treatment of the two sides were blaring to the point that the judge was asked to recuse himself for bias. I have witnessed judges behave like this so many times that I believe it is the norm rather than the exception. However, because these judges are white, the perception is that they are qualified when clearly their attitude and bias render them unconstitutionally qualified to serve as jurists in SA. Transformation means replacing these aparthied dinasaurs with legal professionals who truly embrace the value of the constitution and its principles.
C Vaughn // Aug 1, 2009 at 4:38 pm
“T…. was guilty, the white judge has said so!”