A while ago I was lambasted by some readers for suggesting that some senior black leaders – including Jackie Selebi, President Jacob Zuma, Advocates for Transformation and the Black Lawyers Association – were guilty of hypocrisy because they seem to support the appointment of white lawyers in high profile cases. Why is there no outcry when Selebi appoints a white lawyer to defend him when there are talented black lawyers who could have dealt with his case just as well? (Granted, I was a bit more sarcastic than that.)
Well, I see I have gotten support from Sunday Times columnist, Pinky Khoabane. Yesterday she wrote:
The ever-growing trend among black political leaders to appoint white male lawyers to represent them in legal cases begs the question: 15 years into our democracy, does this country still not have black men and women who are capable of handling high-profile cases….
Selebi’s choice may have been motivated by Cilliers’s victory in the Basson case, but for goodness sake, was there really no one else, seeing that Selebi spent years in exile fighting for a nonracial society where hitherto disadvantaged people would be given more access to better opportunities professionally and otherwise? Do I smell double standards?
Gratifying as it is to note that I am not alone in noting this phenomenon, it seems to me the issue touches on something more profound than the messy shenanigans around the Jackie Selebi case.
What do we mean when we talk about “transformation”? How do we see our own role in that “transformation”? Are we committed to change the way we think and change the way our (often racist inspired) assumptions still guide our actions? Are we prepared to embrace values that truly reflect respect for the human dignity of all and show concern for the marginalised and oppressed? When we talk about transformation do we merely mean that we want to see white patriarchal men replaced by black patriarchal men while we are perfectly happy to keep the deeply unfair and inhumane system on which apartheid was built essentially in tact?
Of course, some people fundamentally oppose transformation because it threatens their material well-being and their feelings of race superiority. Pointing to the excesses of the new elite (real or perceived), they rail against any fundamental change on the basis that “black people will stuff everything up”.
Others support transformation only because they think it will bring material and other benefits (status and power) for themselves. They often defend the excesses of the new elite committed in the name of transformation by reminding us of the horrors of apartheid and then implicitly argue that they are doing no worse than those who ran the apartheid state. “They” did it during apartheid, and now it is “our” turn to do it, so why are you complaining, they often say.
Debate on the transformation of the legal system and the judiciary often falls into this spiral of accusation and counter accusation. ”You give me John Hlophe, but I will raise you with a mention of Wouter Basson and a Judge Braam Lategan.” In this context a debate about legal and judicial transformation becomes nothing more than a debate about how many black men should be appointed to the various High Courts and why those black men already appointed should be defended or snidely vilified at all cost.
What a pity.
It seems to me what is needed to get us out of this mess is to take a step back and to move beyond the specific individuals and cases (like the tragic and scandalous Hlophe saga) and to ask all of us to think carefully about what we wish to achieve with the transformation of the legal system and the judiciary.
Personally I see at least three legitimate goals for the kind of transformation we should be striving for.
First, we want to rectify past injustice. In 1994 only 3 of South Africa’s judges were not white and male and more than 90% of the practicing advocates were white. This obviously did not reflect the inherent capabilities of members of the legal profession, but was rather the result of apartheid policies which directly and indirectly were perpetrated by the (white and male dominated and controlled) legal profession.
White legal professionals would do well to remind themselves that many of them were part of a system that explicitly or tacitly condoned racial and gender discrimination in the legal profession. They should also remember that they are all still benefitting from the consequences of this discrimination. To some degree the race and gender transformation of the legal profession must therefore be concerned with numbers. This is not an issue of “racial esthetics” but of justice.
Second, there is a need to make the legal profession and the judiciary more legitimate. The law was an instrument through which apartheid was enforced and gender discrimination was sanctioned. Moreover, almost all leadership positions in the profession were held by white men, and this largely delegitimated the law and the courts which had to enforce the law. If we want to build a legitimate legal system, we need to provide more people with better access to justice while also changing the face of the legal profession and making it more representative in terms of race and gender.
Those who resist transformation might well be reminded that it is in their own interest to embrace transformation because without a legitimate legal system their own livelihood would be threatened. If our courts are not legitimate and if ordinary people feel that the law has nothing to do with their own lives, it will be far easier for uncrupulous politicians one day to undermine the Rule of Law and to destroy the independence of the judiciary.
Third, transformation is also about a fundamental change in the values underpinning the legal system. Do we really want to replace white, sexist and homophobic patriarchs with black, sexist and homophobic patriarchs? Do we want to replace white judges who care only about money and their own privileges with black judges who do the same?
It is this third aspect of transformation that seems to be falling by the wayside. When a member of the JSC questions a candidate for judicial appointment about her sexual orientation, when members of the JSC fails to question candidates about their views on gender equality and patriarchy, about their attitudes towards forced removals, about the importance of supporting active social movements to fight for the rights of the poor, the JSC is failing in its duty to support deep and meaningful transformation and runs the risk of appointing judges who might be black, but in all other ways would be carbon copies of some of the reactionary white judges appointed during apartheid.
My view is that if we really want to show a commitment to the transformation of the legal system, we should demonstrate a commitment to all three the aspects touched on above. While enthusiastically embracing the drive to change briefing patterns so that more women and black advocates can thrive, and while also clamouring for the appointment of more black and women judges, we should not think that this alone will truly transform our legal system.
The first and second goals are surely being addressed – and rightly so.
But that third goal is left totally vague. What does that “values underpinning the legal stystem” means? What values need to change? Is is socialist values or communist values or atheist values, or christian values that need to be infused?
If we don’t know we’ll be chasing this transformation chameleon like a dog chasing his tail.
Is section 39 not clear enough?
It is my experience that race is irrelevant when is comes to ability as an advocate. But if I’m in the shoes of Jacky Selebi, knowing that me freedom is on the line, I’ll tell to my attorney get me the best there is, and not get the best, on condition that he/she is of a certain race.
We know that judge Hlope went for Black counsel when Ntsebeza SC appeared for him in Langa v Hlope in the SCA. As far as I know Ntsebeza is acting in the JHB High Court at the moment, so for all we know he could have been Selebi’s no 1 choice.
Perhaps being really non racial means that the colour of your advocate’s skin really doesn’t count. If I’m standing with one foot in the jail door and the other on a banana skin, the race of my legal team will certainly be the last thing on my mind.
As to Henri’s question on the third goal of transformation: I believe transformation also means getting non-sexist and non-homophobic non-patriarchs on the bench. To achieve that some judges of all races and sexes will have to go, or change their views. (In terms of the rules patriach includes matriarch.)
Good post Prof.
Pierre,
Fine that you are seeking „support“ for your thesis from journalists like Pinky Khoabane, an article of which I do not hold much of anyway.
First, my counter-question: so why can’t a black person hire a white person to represent him/her? Why must there always be some political respectively some racial connotation to a simple act of hiring whomever I prefer? If I hired a person to represent me legally, then I’d hope that this person, regardless of race, was capable and competent in representing me in court – this is what it boils down to. As to the question of whether we do not have any competent black lawyers in SA: if one negated this question, one would also have to negate the fact that very fine black lawyers have existed up to now (and even during the apartheid years)! But for me, this banal issue is probably beside the point because if one looked at the American legal system e.g. the process of selecting jurors (where jurors are mostly chosen precisely because of specific characteristics inter alia, perhaps and precisely because the one may be white or black etc.), the many blacks hiring precisely white lawyers to represent them (and vice versa too) for whatever reason other than for racial reasons etc. – then I ask myself what’s with all these silly South African “racialisation” within the law (and even by a person of your stature).
Second, Pinky Khoabane’s argument as to why Selebi should have hired a black lawyer (and by implication not a white one) is defeatist and so is yours too, namely: precisely because Selebi was a struggle fighter, he was (and is) obliged to have hired a black lawyer. Hogwash. Who says that Selebi was obliged to hire a black lawyer merely because he was a struggle fighter (I guess the word is “solidarity”!)? Do blacks have a patented right to the personal right of choice of another black person, regardless of whether or not this person may have been a struggle fighter? I find this type of reasoning and argumentation extremely narrow-minded to say the least, because precisely this type of argumentation leads to nowhere else, instead it rather leads to fostering a further chasm in a move towards a paradigm shift in the minds of people i.e. the trend to rather move towards a racialised legal system in SA instead of moving towards a “non-racialised” SA (note: racialised is my own created word). Regardless of how controversial a black/white person is, the point is he/she has a right to choose legal representation as he/she pleases. Do we have any right whatsoever to prescribe respectively expect people to choose in a specific manner? Merely because you have a black partner doesn’t mean that we’d have to expect you to choose black counsel to represent you too, does it? All the more reason why I wonder that you’d be seeking support from even a journalist who is well on her way to doing nothing but furthering and fostering a racialised mentality. So, when speaking about transformation, then a mentality like this can hardly be called progressive transformation – on the contrary, I’d call it retrogressive transformation.
Third, and with all due respect to each competent black lawyer and purely in relation to the merits of your argument: perhaps the reason why “talented black lawyers” aren’t hired by black clients is precisely because of the very (and poor) description that they are merely “talented”, as opposed to being competent – this is what every client looks for in legal representation: competence instead of talent!
I have in a short while developed an immense respect for your views Prof. not that I agree with them always.
You have touched on the key to this issue for me: personal responsibility. For instance, having noticed a highbrow conference on Brands for Good being advertised, I enquired and discovered an all-white cast of speakers and therefore tackled the media partners Mail and Guardian, Biz-Community and other supporters, asking why there was not a single black face there to discuss what essentially involves and relates to us all. I have had one response which was basically: ” doesn’t sound right, but it was arranged by the commercial department.”
The point is: media partners and others ought not to be part of such a thing, they ought to take responsibility themselves and say, this cannot happen. Until people do, there is no heat on commercial departmets and others higher up, to make the necessary changes, and we are consequently left with an intellectual argument with no consequences if you outside the pale (forgive the pun).
It is a pattern that is being repeated everywhere: people simply ignore, when it suits them, the benefits/pains of transformations; and they remembert when it suits them.
It is this that I fear: in this vacuum of effort, the poort are becoming more and more restive because of the duplicity they see. We seem to forget they wield some power, and power that generally is ecpressed in ways we don’t wish to see in our lifetimes.
I know that this is not the current thread, but, can it be said that Yekiso J is in the same league as Hlophe JP when it comes to eviction orders? http://www.news24.com/Content/SouthAfrica/News/1059/8cd965e1a94345268d8c98e68a9f1dec/19-10-2009-02-28/CT_to_evict_pavement_dwellers
@ everyone
Sorry guys I have completely missed Andy’s points or arguments. May anyone who understood same summarise them for me?
Sne says:
October 19, 2009 at 17:01 pm
@ everyone
Sorry guys I have completely missed Andy’s points or arguments. May anyone who understood same summarise them for me?
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I will steal a march on Dwork.
Andy is right!
I couldn’t summarize it because its kinda self-explanatory.
The gist i would think is what i said a bit earlier …
Harold Ferwood says:
October 18, 2009 at 13:42 pm
Maggs Naidu says:
October 18, 2009 at 13:26 pm
So in the New South Africa we must rather strive to a “nonracial society where hitherto disadvantaged people would be given more access to better opportunities professionally and otherwise?” rather than one where one has the freedom of choice in deciding what is best for one’s individual interest in accordance to constitutional values?
Is the issue is not whether Black accused uses white counsel, but why do white accused continue to use white counsels themselves? I can see a goose-gander answer coming ….
To Sne:
How about this summary: if you can’t read or understand English, then perhaps you should not participate stay out of this forum. I guess you’ve missed the train and not only my arguments.
Jeez, Andy! Doesn’t look like it was a good Monday for you! ….
One thing is for sure ….. you’ve changed the topic.
@ Chris
You mention Hlophe JP briefing Btsebeza again.
That is unlikely.
Hlophe fired Ntsebeza SC after the SCA debacle — and then hired two white SC’s to represent him, Pincus & Newdigate. (So far as I know, the JP never hired another black SC after firing Ntsebeza.)
Had Hlophe JP not been my personal hero, a giant amongst jurists — and arguably the finest legal scholar ever to have walked this earth — I would have been quite disgusted with the JP’s hypocricy.
But I am not.
Andy says:
October 19, 2009 at 17:49 pm
On reading Sne’s request for translation, I tried English to Cantalan then back to English.
It helps.
Btsebeza = Ntsebeza.
Harold Ferwood says:
October 19, 2009 at 17:46 pm
You got it wrong Harold.
To be truly nonracial, Black clients must employ White lawyers.
White clients must not employ Black Lawyers.
p.s. Something about the jury system too.
p.p.s Something about Pierre and Pinky too.
p.p.p.s “competence instead of talent”
Question ….
Does the merits and general process of a criminal trial differ when the accused is a high profile or celebrity personality?
Or let me state this way rather ….
Essentially only three persons have been spoken of for their alleged lack of confidence in “Black counsel”and preference for considering White legal representatives as more competent, but what would the stats be in general?
Maggs Naidu says:
October 19, 2009 at 18:08 pm
For once you not making sense to me.
Good post Prof.
As an aside, there is a lack of transformation when SAFA appoint a national soccer coach! Always the white ou, never the black ou!
Maggs, George, Andy, Harold etc are right.
The rule are very simple:
In any given profession, area, field, conduct or endeavour:
1. Black people may complain about lack of “transformation.”
2. White people may not complain about lack of “transformation.”
Thank you, all.
Rules of grammar 101:
rule are = rule is
Eish: Andy, relax.
Mikhail: what rules?” In SA the rule book has been dispensed with.
I don’t get it. Lets just admit it… we trust white advocats more than black.
Anyone care to differ?
Andre: Interesting. And why is that?
Sirjay Johnson:
I care to differ. I think this perception is regrettably a pervading one in the SA legal profession and something which no one should accept. This to me is symptomatic as to why people (inlcuding Pierre de Vos) still speak of “talented” black lawyers instead of competent lawyers. Isn’t time we change this mentality?
Thanks Andre. I think I understand your passion. However, I believe the Prof is actually considerably transformational, not the enemy, rather an instigator who wants the best for all the people via judicial clarity under the Constitution.
Correction: last post to Andy, not Andre, apologies. Eating supper. Distracted, my partner serving me topless.
An alternative history:
1. Set up a new profession (“profession X”) in South Africa today.
2. Allow only black people to practice profession X.
2. Then, after 350 years, open the door slightly to whites – let a few start practicing.
3. After 15 years of relative openness, survey the pool of skill and experience in profession X.
Does anyone think that whites would have caught up with blacks?
Come back in 50 years, maybe.
Michael: Interesting analogy: however, what does it mean for South Africa today?
@ Sirjay
It means that it is foolish to think that black lawyers could have caught with white lawyers since 1994.
Anyone who thinks there is rough parity today completely fails to grasp how severe the discrimination against blacks, both in education generally, and in the professions generally, was under apartheid.
Michael, I got that, thanks. But when, for example, you have an urgent interdict against you, what do you do? Wouldn’t it rather be understandable that if we can afford it, we go with the old order experienced advocats to protect both ourselves and ultimately our families. Perhaps trust, experience, ability, has to be earned, especially when it comes down to serious threats… I think these black leaders who revert to white advocats feel the same. I don’t think its racial, but rather rational.
In 50 years if not less, some black advocats will reveal themselves as brilliant, and winners. Its all about survival, rather than racism.
@Sirjay
Some black lawyer have already revealed themselves to be brilliant: Moseneke and Ncgobo JJ are good examples.
The problem in terms of short and medium-term parity is that the pool from which they emerged is relatively small.
Michael: perhaps I get lost with black African names, but Moseneke and Ncgobo, are they not judges, and no longer practising advocats. When your life is on the line, do you not want to choose the best? Someone you can count on, especially if you feel or know you are innocent? Its a hard call, I understand that.
Sirjay, I don’t know why this is so. I suspect the assumptions at play within SAFA may well also be playing itself out in those high-profile criminal matters where silk of a paler persuasion is preferred.
What I can’t understand is why no black coach since Sono, lest I am dead-wrong. Blacks have been playing soccer for many, many years. I remember the likes of Ace, Teenage and others. These men knew their soccer and they were good, way back in the 70s. Why aren’t same national coaches to-day? Cultural patrimony is one thing, but to push against that tide – through a white coach – is quite another, and the best part is nobody notices. Maybe the ‘silks of soccer’ have to be pale, the evidence is there for all to see.
“Had Hlophe JP not been my personal hero, a giant amongst jurists — and arguably the finest legal scholar ever to have walked this earth — I would have been quite disgusted with the JP’s hypocricy.
But I am not.”
Well you should be: Voertsek my vriend
Think I have a distracted conjugal commitment, so I’m off, cheers.
Harold Ferwood says:
October 19, 2009 at 18:18 pm
I was trying to interpret Andy’s comment.
Guess it’s more confusing than I thought!
Mikhail Dworkin Fassbinder says:
October 19, 2009 at 19:03 pm
Maggs, George, Andy, Harold etc are right.
The rule are very simple:
In any given profession, area, field, conduct or endeavour:
1. Black people may complain about lack of “transformation.”
2. White people may not complain about lack of “transformation.”
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Dworkism 101?
Michael says:
October 19, 2009 at 20:11 pm
Interesting concept.
Isn’t that what the old order tried to do with cheap labour.
Any idea what the demographics is like among miners, manual labourers, street sweepers?
Maggs: but do you take my basic point — that, had whites been excluded, marginalised, banished, excluded, for as long as blacks had (three centuries or so), they would have taken much, much, longer than 15 years to catch up?
Andy (re: October 19, 2009 at 13:38 pm)
Sorry for the late response but I think Pierre is making a point regarding hypocrisy and not necessarily choice. Indeed it should be anyone’s prerogative to employ whomever they feel competent enough to represent them successfully.
The hypocrisy here is that the ANC and their alliance partners are so vocal about transformation of the judicial system, among others. Transformation, to them, will have occurred if the judicial system reflects the racial demographics of the country. In other words, there should be more Black faces in the judicial system.
The opposition (mostly white) makes the case that transformation should not be just the replacement of white faces with black ones while sacrificing competency. The response to this argument has always be an accusation that this argument is inherently racist; that it implies Black jurists are not competent. There in lies the whole rub.
If senior members of the very movement that cries racism when competency is mentioned, then turn around and hire white lawyers to represent them in high profile cases, are they not invariably sending a message that they could find no Black lawyers competent enough to handle their respective cases? Why are Black lawyers good enough for transformation; yet not so good enough to represent them in high profile cases? That is a question that needs to be answered by those Black pro-transformation politicians who hire white lawyers to represent them.
To a layman it seems to me that the REAL TRANSFORMATION of the judicial system is not about replacing white lawyers but about making access to justice easy for all South Africans. That means unclogging the system, drastically lowering the costs of litigation, improving language skills of court officials, improving the police investigation, improving prosecution and judicial standards.
Otherwise all the huff and puff about black and white is really just about who in the judicial system (the elite and the elite “wannabes”) has access to the trough of wealth and privilege in the system.
There is a need to infuse confidence in the indigenous african legal scholarship and practising lawyers in order to change the racial lopsidedness in briefings.
The first area will have to be the state attorney, only white legal firms are making a killing. Before individuals are expected to brief blacks, the state must take a lead. I certainly will campaign for this.
As for the stance of the ANC regarding transformation. The geopolitical dynamics must be taken into cognisance. It is an anomalty for a minority to have almost singular presence, especially in the SCA. This inequity reflects the past racial divide. Blacks will never develop competence if not allowed an opportunity to practice. I totally agree.
I will confront the state attorney on this as the first port of call. The individuals will follow suit. The DA is expected to defend their ideological friends in the judiciary. It is all about ideological identity.
We are in the business of advancing our diverse political goals. We need demographic, gender and philosophical change in the judiciary and this will occur. Watch the space!
Dumisani Mkhize, you have summarised my point exactly. I would not have been able to say it better.
So any insistence on competency is inherently racist…..
That’s RSA today for you.
No wonder the poorest of the poor are complaining about a lack of delivery.
ISHMAEL MALALE says:
October 20, 2009 at 7:18 am
We are in the business of advancing our diverse political goals. We need demographic, gender and philosophical change in the judiciary and this will occur. Watch the space!
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If that happens it will be wonderful.
And the contributions of Pierre and Pinky would have gone some way towards that end.
Nonetheless Dumisani in saying “(t)he hypocrisy here is that the ANC and their alliance partners are so vocal about transformation of the judicial system, among others” has raised a very relevant aspect.
It goes towards that which George raised elsewhere “(w)hy do you think that Julius Malema is so popular?? He is – quite understandably – exploiting the festering resentment brought on by having to witness the endless ‘wringing-of-hands’ within a comfortably smug establishment”.
And Sne “I cannot countenance the idea of forcing my fellow white compatriots to adhere to high standards whilst I cannot apply those standards to my black compatriots”.
Pierre, can’t we say though that for the sake of diversity we should have conservative judges? That would also speak to the legitimacy of the courts. I mean many South Africans are conservative and should that not be mirrored in the courts? Let’s say a conservative judge, for religious reasons, has a moral objection to same-sex unions. Would that disqualify him or her from the bench? I mean he or she would have to respect the equality clauses in the constitution but could one be disqualified during a JSC interview by outing oneself a a conservative?
Michael says:
October 19, 2009 at 22:31 pm
Maggs: but do you take my basic point — that, had whites been excluded, marginalised, banished, excluded, for as long as blacks had (three centuries or so), they would have taken much, much, longer than 15 years to catch up?
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Indeed.
However waiting for change through the natural order is not an option, pressure has to be brought to bear even if in the short run there are some upheavals as a result.
The effort at transformation goes a lot longer than 15 years – remember the Sullivan Code that was around in the 70s and 80s?
I have to agree with both Dumisani and the Professor: the hypocrisy of the ANC camp is unmistakable. That is, that camp reckons it can at once (a) cry racism when white advocates are briefed in complex suits on the basis of their superior experience and (b), go on to brief those white advocates in complex matters.
On the strength of the foregoing, it seems to me that two points present themselves: in the first place, we can count on the ANC camp to say that which stands the most attractive chance at generating support. Secondly, we cannot rely on the ANC to acknowlwedge certain painful realities.
I am also going to agree with Michael. And I will say a few additional things which I trust are consistent with the general thrust of Michael’s posts. Black lawyers have every inch the potential of their white counterparts. This point is remarkable only insofar as it is spectacularly obvious and uncontentious. But we would do well to be alive to certain regrettable realities. For a start, the bar has traditionally been the province of white men. Secondly, it follows from the first point that for some while, the majority of outstanding litigators are going to be white men. And thirdly, it makes sense to aim at incremental gains as regards briefing patterns and so forth so that we can see more Mosenekes and Ncgobos appointed to the bench: truly excellent lawyers by anyone’s reckoning who just happen to be black.
Our country has a deeply shameful legacy. But fast tracking transformation is, to my mind, an ill-conceived remedy. One can and should regard our history with disgust. But our revulsion should not compromise our better judgment.
I get the idea that some think that the legal profession was forbidden for Black people until 1994. When I started appearing in the courts in 1982 there were plenty of both talented and competent Black attorneys. So what happened to them? Today many of them must be still around, and should be able to call themselves experienced as well.
Leigh says:
October 20, 2009 at 8:44 am
But fast tracking transformation is, to my mind, an ill-conceived remedy.
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What do you think would be the adverse consequences if the State Attorney and big firms were put under pressure to change their briefing patterns and did so?
@ Chris
I doubt there was more than a tiny fraction of African advocates around until 1994. (Also, of course, not a African black judge.)
Even today, the rate of African candidates failing the Bar exam is much higher than that of other groups. (Only craven idiots – of which there are many- thinks this is because Africans have inherently less ability.) The differential can only reflect that the continuingly terrible state of much of black education has knock-on effects all the way into the professions.
The people who find it odd that Zuma and Selebi and Hlophe JP brief white advocates just have close their eyes to these facts.
The legal fraternity is still a white man’s affair.
Maggs,I do advocate that briefing patterns should be changed. And the State attorney does often brief black advocates.
By fast tracking transformation I meant that transformative judicial appointments have been, I think, too hasty. I also think that we should not be surprised if for the next few years, appellate advocacy or especially complex commercial suits remain the province of white men. The stakes in such matters are extremely high and most litigants (and instructing attorneys) are understandbly loath to trying out untested counsel. And among advocates, leaders are not overkeen to have to work with second chairs that still have much to learn.
Actually I think that one way to see more black commercial litigators at the bar would be for commercial firms to employ black article clerks. Those clerks with a tendency to litigation could be the ones to brief advocates and they could see first hand how pleadings and especially papers drawn and in time, even start producing first drafts for counsel to settle. If this process could in some way be formalised at law firms, we could have black lawyers undertaking pupilage with some relevant skills. That would give then a leg up at the bar and may inspire some advocates to take them on as juniors in some complicated cases.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=86906&sn=Detail
Anyone have the requirements for entry to Law Schools? And how further Blacks and coloureds are handicapped and made to look less competent before they even become legal practitioners?
I’m curious as to the effect that BEE in the corporate world has on the availability of competent black advocates. Surely a skilled and talented black lawyer would have a far quicker path to fame and riches by going on a corporate path? My guess would be that skilled black professionals are poached from the legal world at all levels (from university up) with far more tempting offers than a legal career can provide (in this crass materialistic world we live in). I suppose this would equally be the case in other technical, skilled areas which require a longer slog.
@ Maggs
Depends. Would you consider it adverse that more prosecutions be dropped? That the state lose more civil cases – at the cost of taxpayer money? That landowners resisting redistribution, who employ top counsel, have an easy time defeating the state, which has briefed less experienced, completely outgunned advocates?
Leigh says:
October 20, 2009 at 9:41 am
It’s not going to happen on its own.
I read somewhere and heard from people that Black (particularly African) clerks are frequently “deployed” to wash cars, make tea, do photocopying, buy groceries and the like.
To my mind the likes of Coleman at SAA (at a cost of over R200 million) and Santana at Bafana Bafana (at a cost of R1.4 million per month) give meaning to the lie that is called “competence”.
Take into account that during the era of the Sullivan Code large corporations were required to submit returns on the transformation statistics which they did for nearly two decades – if what they submitted was even 10% accurate, we would not be in the situation that we find ourselves today.
Maggs, I have heard much the same complaint from white clerks who said they had to do photocopying, fetch dry cleaning for directors, pick up their kids at school and generally being treated like indentured labour.
Michael says:
October 20, 2009 at 10:04 am
I am not sure yet which is the lesser of the evils, but I would opt for more pressure to transform.
But you raised the issue of education earlier which in my view goes to the heart of transformation.
I heard recently (and am horrified) that towards state subsidies universities gain four points towards engineering students and one point towards teacher education – add to that the shutting down of teacher training colleges and we have a right royal mess.
Pierre De Vos says:
October 20, 2009 at 10:11 am
Maggs, I have heard much the same complaint from white clerks who said they had to do photocopying, fetch dry cleaning for directors, pick up their kids at school and generally being treated like indentured labour.
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Indeed that is part of the program, but not for the entire period of articles.
And that is not all they learn.
Dumisani Mkhize,
Thanks for one of the few reasonable responses worth debating further. Since Pierre de Vos has agreed with your argumentation, I will also address this response to him.
I take and accept your point on the hypocrisy. However, the right to choose is intricately connected to issues of plausibility and/or hypocrisy.
First, concerning racial demographics: I think it is fair to maintain that a lot has been done in respect of “racial demographics” in the judicial system so that one can speak of a reasonably “fair representation” of essentially blacks and whites. In spite of this, indeed more has to be done in terms of greater representation of other minority groups e.g. Indians, Coloureds and women who are clearly under-represented, notwithstanding some individual cases and appointments (and I’m not talking about that awful affirmative action trashy appointments here!). By the way Pierre, this is also one way to achieve legitimisation of (and respect for) a legal system.
Second, regarding replacing whites with blacks at the cost of competency: I for one, agree with the argument that people (in this case “non-whites”) should not be replaced merely for the sake of replacing them and in order to fill quotas. People must be appointed because they are competent, qualified and experienced – this cuts in all directions in our society, from a waitress to a lawyer to a judge. These are the criteria which should separate the men from the boys, good counsel from bad counsel – and not white from black. Thus, far from it being a racist argument, it is more the question of seeking competent counsel – something all clients have a right to and something most clients also want. Accordingly, whether someone is talented (as maintained by Pierre) is completely irrelevant to any discussion on this issue. As mentioned in an earlier post, the fact that blacks are perceived as talented is probably the reason blacks will always be perceived as “less competent” and not competent – perhaps also the reason why even the ANC is forced to resort to competent counsel as opposed to talented counsel. This is also clear from the perception that “… they could find no Black lawyer {competent enough} to handle their respective cases?” And what’s wrong with this – this is what any reasonable man on the street would do too? But I’d rather see it in a slightly competitive manner: if I don’t get what I want at Woolworths then I simply go Pick&Pay and nobody can prevent me from doing this. As to whether or not this is plausible or hypocritical as a pro-transformationist – this is another issue. What I am saying is: instead of necessarily transforming a system (a rightfully pled for by Pierre), we probably need to first reform our mentality and approach to basic issues such as the way see view ourselves and others.
Pierre De Vos says:
October 20, 2009 at 10:11 am
To be treated as a gopher (go-here, go-there) isn’t exclusively a legal fraternity practice and I myself had experienced it in the Navy as a junior officer, where obedience to your superior office is mandatory and truly the expression “when I say Jump, You say …. ” applies.
But now we speaking about contemporary society and specifically clerks, and I think unfortunately the Professor is not aware of the difference, which is that the long-run benefits which goes along with this treatment, doesn’t exist for their black counterparts.
Harold Ferwood says:
October 20, 2009 at 9:53 am
Thanks for the link. A feather for bloggers on Constitutionally Speaking. Just look at the number of “Find this comment inappropriate?” on that blog!!!!
@ Maggs.
Yes, the inevitable cost of training is that some cases will not be optimally handled. When I was a junior practitioner, I was often given matters beyond my competence. The client would not have been happy if he knew that he may have lost the case because I, five years out of Wits, was assigned. But sometimes the only way to train a lawyer is to throw him in the deep end.
If YOU, Maggs, were on trial for your life, or all your possessions, would you not tell your attorney to find the very best Advocate — irrespective of race?
Similarly, if you and your family are struggling reclaim land from which you were removed by the Nats 40 years ago, you would hope that the state will brief the best possible Advocate, not so?
If we can all understand that, we can understand too why Hlophe JP, Zuma, Selebi etc. get white advocates. No mystery is involved.
Maggs is right.
The fact that Coleman and Santana did very badly shows that competence is a “lie.”
Thanks for clarifying this Maggs!
Maggs, I do not mean to gang up on you. Truly I do not. But I have to agree with Michael again. There are so many ways in which advocates can ruin meritorious cases. And briefing an advocate that will not make a basic, readily avoidable mistake is about the very least one would want from counsel.
When it comes to difficult, contentious cases which give themselves to reasonably cogent argument from both sides, surely the litigant would not just want counsel that would avoid an embarrasing balls up. In addition, the litigant would want the case presented well. And a great deal goes into persuasive case presentation. Not the sorts of things one learns quickly.
Michael says:
October 20, 2009 at 11:35 am
If YOU, Maggs, were on trial for your life, or all your possessions, would you not tell your attorney to find the very best Advocate — irrespective of race?
———————————————————————————————————-
I was once referred to the “best senior council”, by a firm of attorneys who were referred by a NGO dealing with the specific matter.
It turned out that all along the way a fool (that’s me) and his money are soon parted.
My own experiences have been that where I got my lawyers to do what I wanted I was successful – where I relied on “competence” I ended up out of pocket.
I have no serious issue with people employing whom ever they are comfortable with, but I do have an issue with the notion that if left to the natural course of action that transformation will happen in time – there’s simply no evidence to suggest that it will.
Leigh says:
October 20, 2009 at 11:50 am
LOL!
Free free to engage, attack gang up or whatever – I am quite able to absorb where required – there’s really no need to molly coddle me.
I agree that “a great deal goes into persuasive case presentation. Not the sorts of things one learns quickly”.
That great deal is acquired through experience – unless and until more Black lawyers are sufficiently exposed things will remain the same.
Something has got to give – it’s unlikely that that something will be the pressure to change.
Mikhaik Dworkin Fassbinder says:
October 20, 2009 at 11:38 am
Hey Dworky.
Happy Tuesday.
How about illustrating where the “competence” has been of benefit to South Africans generally.
@ Maggs
You know as well as I that:
1. There is no such thing as “competence” – except perhaps in trades like bricklaying, and crafts like basketry and dog grooming. All you need in a profession is basic literacy, good intuitions and personal integrity. (I, personally, choose my dentist by throwing darts at the pages of the telephone book. Don’t you?)
2. Even to the extent there may be such a thing as “competence,” it is an ephemeral thing; so-called “standards” are readily subject to manipulation, etc.
3. Professional exams prove nothing. They just congeal and reproduce the prejudices of the gatekeepers of the profession — the status quo establishment. Plus, as many U.S. studies prove, all exams are culturally biased against blacks, gays, etc.
@ Maggs
Sorry to hear about your bad experience with a Silky Counsel.
I must say, I once had a similar experience with running shoes.
I bought Nike specifically for the Two Oceans marathon. (My friend told me Nike was the best.) Nevertheless, my time was very bad.
Moral of the story: All running shoes are the same!
Dwork is right … The word “competence” is used quite broadly to brush over issues of professionalism, professional ethics, etc.
And as you said about the Gatekeepers to the profession, they make use of the word as a sword to “knighted” those they have found in their opinion to have accepted and played to the status quo system.
I think the issue of interns or clerks doing tasks which do not require any skills is rife. THe issue of indignificant briefing of africans is a worrisome issue which I will take up with the State Attorney, the minister and the Justice and Constitutional Development portfolio Committee.
The time for almost exclusive briefing of white firms will have to come to and end. This will dispel the lack of confidence which is deep-seated and is a product of fascist subjugation of our society. We have to stem the unjustified white priviledge expressed in the form of competence which is simply put apartheid benefits of exclusive white legal practice.
We are eagerly waiting for brave judges that will even write judgments in indigenous languages. No amount of justification will deter us from transformation. The more the noise the greater our determination. neo-racism is articulated in viewing blacks as being being talented but incompetence. Competence is generated through practice.
Some of the judges in the CC were academics that made painstaking contributions to the nascent constitutional jurisprudence. They were regarded as inexperienced and politicians wearing judicial gowns. They proved their worth. I refer to sachs and mokgoro in particular, white and black respectively.
When making appointments the JSC will always be alive to racial harmony in order to obliterate the vestiges of solidary and unarticulated judicial ideological positioning. We have to build our own experience not depend on whites for development. We have the brains and the resources are know at oue disposal to re-engineer our society in a way that no white scholar should see himself or herself as an incubator of competence churned out to inexperienced lawyers.
The confidence of the black man will rise with the persistent involvement in complex litigation. This society is evolving towards a moment of an independent indigenous african intellectuality not predicated upon white tutilage. Competence is a product of inttelectual and practical exertion.
Broad-based BEE will have to incorporate the legal fraternity. In the few years to come, very few leaders or litigants will regard blacks as pseudo – experts and practitioners. The reason of the cacaphonous noise is that we are beginning to take the transformation of the judiciary very seriously.
In the next ten years we would have covered ground!
Mikhaik Dworkin Fassbinder says:
October 20, 2009 at 12:53 pm
Nice try Dworky.
Is empty handed the best you can offer?
Remember the issue (silly deflection does not become your argument) – where did the “competence” benefit people of South Africa generally?
Just a few areas will do.
@ Ishmael
I will never forget, how. as a white articled clerk at a big “Jewish” firm in Johannesburg, I was handed a huge commercial case to run on my own — on my second day.
But it did not always go so well. In April that year, a partner asked me to hold the lift door open for him. I knew I was being a menial task only because I was a “gentile.”
And resentment burned fiercely in my breast …
Mikhail Dworkin Fassbinder says:
October 20, 2009 at 13:03 pm
Indeed – Nike puts a lot of resources into establishing its brand in the process creating all kinds of illusions about its unique advantages.
Pretty similar to the rationale behind the campaign to keep us pretty much where we are.
@ Maggs
I though I had made myself clear: I agree with you 1001% on this one,
“Competence” has never, ever, benefited the people of South Africa generally.
Never. Ever.
Mikhail Dworkin Fassbinder says:
October 20, 2009 at 13:56 pm
So you got nothing but a lot of interesting euphemisms and Dworkisms.
Maggs, I agree that black advocates do have to be exposed to a variety of legal problems and especially those areas of law that are pretty much dominated by white men. But one cannot expect instructing attorneys to run risks above those risks which are in the nature of litigation. Clients are hardly understanding.
Leigh says:
October 20, 2009 at 15:05 pm
Any ideas on really workable and practical solutions?
Now even aspirant judges have joined the fray – http://www.news24.com/Content/SouthAfrica/News/1059/28d18e838b3a40f1aa7af6c0445990d9/20-10-2009-05-05/Judge_ruffles_JSCs_feathers
@ Magg
Yes, there are workable and practical solutions:
1. Every available resource devoted to education for black school kids.
2. Huge investment in scholarships and bursaries for black law students.
3. Mentoring and support for your young black lawyers.
But I suspect already few practicing lawyer will be satisfied with this. They will ask – why should the next generation only benefit from transformation? We want the big cases NOW! This is an ordinary human reaction.
Michael says:
October 20, 2009 at 20:51 pm
My sense is that unless there’s a collective response that addresses immediate, short, medium and longer term solutions this will continue to boil.
Ishmael has indicated pressure for some immediate term solutions via the State Attorney – I would like to think that the legal profession can offer some as well.
In the absence of visible and substantial goodwill, any efforts at remedy may well be perceived as delaying tactics.
True hypocrisy would be if a person expected others to make concessions in the name of transformation, but when push came to shove they are not prepared to make those self-same concessions themselves.
And I’m afraid the argument that “this situation is so dire and important, it warrants an exception” is hogwash. Many individuals and companies are being called upon to make “sacrifices” by these hypocrits – and the situation is just as dire, if not more so. The source of livelihood for the full staff compliment, not just an individual hide is on the line. And it’s even life and death in some circumstances; young electricians are being slaughtered in droves as they are pushed into positions they are not ready for in the name of transformation. Not a lack of potential, it’s not enough appropriate training for the task.
Hlophe JP has attracted a lot of discussion here. All things considered, could the ultimate cause of the criticism Hlophe JP has endured here be traced back to rushed transformation?
I agree with Maggs we need to make a conscious effort, to be proactive in redressing the disparities. It’s going to take too long if it’s “business as usual” and the people are impatient. However, I also agree with the posts above expressing that it will take many years to truly work out the racial inequalities we have inherited from the apartheid days – at least a generation.
Many years ago I came across a lady who had this sign on her desk:
“A women has to do twice as well to be considered half as good as a man. Fortunately, this is not difficult.”
So true! It’s not difficult.
Unfair, but not difficult.
None of us are born to circumstance equal to all others. It’s been like that pretty much since the dawn of time. At least today women have a better deal than she had then, and with effort tomorrow can be even better than today.
I’ve ensured that “upliftment” has been a part of my business activities since 1984. If there is one thing I’ve learnt, you can’t build great buildings without solid foundations.
You can accelerate the program, but if you skip steps the end result will always suffer. At least that has been my experience.
When people need to catch up, they need to work harder – it’s unavoidable. The best you can do is be a good and active mentor in a social contract where both sides come to the party.
There is no free lunch (unless you go into politics
).
@ Maggs
Yes, the State Attorney already has a practice of very often (but not always), briefing black counsel — even if there are “white” lawyers who are more experienced in the particular subject matter.
Problem is: the accused will, just like Selebi, brief the very same white counsel who no longer receive briefs from the State Attorney.
Here is one solution — ban white advocates from being briefed in high profile cases, by both sides.
White advocates must either (a) retire early; (b) henceforth practice at the Auckland Bar; or (c) henceforth practice as welders, basket weavers, or dog-groomers.
Michael says:
October 20, 2009 at 21:58 pm
Is that your final answer or do you want to call a friend?
white male judges are a majority in South Africa reminiscent of the exclusivist white judges. This will change. we have approximately 148 males to 20 ladies; 100 whites against 69 blacks. There will be fair gender and racial representivity. This is a bold statement. You cannot have judges who do not quite understand the culture of a people over whose cases they preside.
No amount of loud noise will cause us to retreat. South Africa cannot escape total transformation of the judiciary.
Africa must reflect its africanness. The judges appointed will have to meet the criteria, we do not want the most suitably qualilified as such a methodology will inherently and subtly discriminate against blacks. We only need people who are fit and proper to serve as judges and satisfy the minimum requirements of the quidelines which are not cast is iron and indeconstructible mortar.
We have reached s stage where you cannot beg help for generating competence from unwilling white counterparts. Those unwilling must just be left alone. They will join society as time evolves.
The invigorated legal service charter will have to be drawn up to guide the total transformation of the judiciary. Greater racial representativity will never be suppressed by neo-racial antics that blacks are not ready. Non sense!
Whether the accused briefs the old volk we will not have a problem. South Africa is a democratic country, but the bigger tap must go to the marginalised now to create equity. This is real justice. no ambivalence. That is the attitude of an interventionist developmental state.
We cannot permit perpertual arrogant subjugation of the majority under the social construct of racial supriority. The so called natural white intellectual intellectuality and competence. This defeats reconciliation and generates negative energy on both sides. We are hardening attitudes against the legal saints. We want change! swift change. We cannot after almost a two decades still be suggesting that africans are not yet equal to the task. We have brilliant african minds out there. The judicial academy is also coming.
Maggs, I will agree with a point which you raised a bit earlier: a measure of compulsion may well be necessary to change the racial composition of the bar’s upper echelons.
I have two chief gripes with the voices that typically call for racial transformation of the advocate’s profession. The first is that those voices seem loath to publicly acknowledging certain pertinent realities. As people have mentioned often enough on this blog, one of those realities is that for the time being, most of the leading litigators are going to be white men. And one cannot expect a litigant that finds herself in a grave spot of bother to opt for a less seasoned litigator if she has the means to see a darling of the bar briefed.
The second of my two grievances is that the various calls that we hear for transformation do not seem to suggest manageable goals. I for one would like to hear their answers to some questions. What constitutes a complex commercial suit? What percentage of complex commercial cases – be they court proceedings or arbitrations – do they want handled by black advocates? In what percentage of those cases are black advocates to be either sole counsel or lead counsel? And in what sort of time frame should the desired results materialise?
A things stand I think many people will not be able to have especially meaningful debates about the racial transformation of the bar and the judiciary. Black advocates and judges want to see more black litigators grabbing headlines and top briefs. White advocates and some senior judges caution that such transformation, although necessary, should not be rushed. The trouble is that often these camps bandy in way that tends towards discussion at cross purposes. This needs to change and efforts to determine relatively clear goals (the bases of which could be debated) would to me amount to useful steps.
Ishmael Malale is right
(Except that his figures are wrong: only a minority of South Africa’s judges today are white. I am slightly disappointed you were not aware of this, Ishmael.)
The big problem remains at the Bar. So many litigants, black or white (and including even Hlophe JP) seem to prefer to choose white advocates in big cases.
So, Ishmael, I want to challenge you to support my campaign: Let us ban white advocates from the High Court, starting 1 Jan 2010. Many of them can switch to Mag Ct work. Others can be absorbed into attorneys firms.
Why not?
ISHMAEL MALALE says:
October 21, 2009 at 9:13 am
“white male judges are a majority in South Africa reminiscent of the exclusivist white judges. This will change. we have approximately 148 males to 20 ladies; 100 whites against 69 blacks.”
Ishmael, where did you get your figures? It seems outdated.
Second question, what does africanness mean?
I would also be interested to read a definition of ‘Africanness’.-
@ Chris & Leigh
Your very question betrays how profoundly un-African you both are.
If you don’t already understand, you will never know.
A true African does not need a formally stated definition of his identity. His African-ness is embedded in his soul, intuitively grasped and daily experienced. “Africaness” is not an ideology — it is a lived, collective situatedness, an instinctive practice.
So, your demand for a definition is itself the antithesis of African-ness.
Maybe you can understand my point through the words of one of your great Romantic poets: “We murder to dissect.”
(Wordsworth, 1888.)
Mikhail, you say that ‘Africannes’ is something which, apart from other things, is experienced daily. How might a member of our society that is more privileged than Chris and me in this regard experience ‘Africannes’? And is ‘Africannes’ something that can be experienced by anyone regardless of race?
Evidently Mikhail, you are the only person who would deign to clarify such things for unfortunates like Chris and me. So I count on you yet again it seems.
Since you are fighting for the transformation cause, you can keep your job as a white male. There are only x number of jobs, so the rest must go.
I must concede that the statistical matrix is not a recent discovery. You are perfectly welcome to disclose the current figures. Perhaps, the white majority nestles where it matters, the SCA.
I marvel at the artistry with which some top white counsel and judges acquit themselves in litigation and decisions a consequency of racial domination or euphemistically exlcusive opportunity in the profession.
If I where in the JSC I would focus my attention in the SCA.
The africanness means echewing racial prejudices and acknowledging that blacks were subjugated and must now be given an opportunity to serve in the judiciary without being reminded that they mere joining the ranks which were exclusively for whites.
The quality of not being nostalgic about european roots but realising that white must be enmeshed in the black without being uncomfortable, the black accepting and intermixing with white making a completely new identity; not rainbow colours; new image of genuine natural concoction.
Whites must not be totally erased on the judicial map. Appointment on merit will replace racial representativity upon realisation of critical mass of black participation in the bar and judiciary.
The bar is white and a source of silk and front line for judicial appointment. Legislative intervention in inevitable to push change. banning of race is too extreme and unafrican ! I will ask Malema about taking that up. I will hum in the heart.
This is the africanness I refer to. After all we want to build a non-racial society, not racial dominion of a special type. White judicial or legal majoritarianism. white economic and social domination . The is widening chasm between the pathetically rich white and very poor blacks.
Leigh says:
October 21, 2009 at 9:26 am
It seems that there’s no dispute that more needs to be done.
The dispute seems to be around the timing.
African National Congress: The transformation of a Group Psyche
Type: Political Psycho-analysis
Expiry: Next Elections
Contact: thapelo.mahlangu@mtn.blackberry.com
Any group, be it social or political, function as a psychologically integrated unit in which individual members become subject to the larger psyche of the group. Many individuals claim that they can hold their independence in a group, but this is manifestly not the case. Groups are dynamic, they also go through various phases: Forming; Storming; Norming; Performing and Transforming. But this does not mean that a group will follow a systematic approach throughout the phases nor fully complete the process in the phases and simply switch into auto-cruise. As it is continually evolving, it will live up to its nature and find itself in and between the phases as and when it reaches transformational milestones.
The processes might have unfolded as planned or otherwise since 1994 but the fact remains that the recent developments for us, ordinary citizens, bring with them a sense that we will be consulted with henceforth. Process A might have been, first and foremost, to rescue the country from the much flawed laws by mandating a lawyer by trait to lead the process of embedding laws that must embrace all pigments, handicaps, and levels of social status.
Process B might have deliberately been to court globalisation regulations utilising the affirmative results of Process A in order to woo foreign investment-directly and indirectly. Part of Process B was to also seek an acceptable cosmopolitan, yet uniquely African, image that can project our commitment to our newly found democracy and also to justify our flexible employ of various economic practices be it socio-capitalist; neo-communist; neo-capitalist with inflation targeting or quasi-socialist. This was a clear mandate for an economist by trait to lead the process of marketing the country, its natural resources, its ugly history, its diverse nation and above all, its envisioned possibilities.
These were excellent systematic thinking plans championed by visionary leaders until attempts to halt and shelve the last and imminent Process C-the mandate of a leader with the function of a Public Relations Officer- backfired. When all the laws are in place-ills suppressed under the secondary process carpet- and we were playing an active role in global economics- scrambling for the diminishing resources- some powers were at work to block the impending transition. There was an offensive denial of the wisdom in Process C and the repression of the conflicting ideologies emerged leading us to the brink of democratic instability.
Process C is not only a strategic plan but also a way of millennial living after the synchronisation of equity laws with global economics in the 90’s. Process C is solely focussed on the leadership qualities that will safeguard the progress made. Process C is effective and is different from traditional problem resolution techniques and majority democracy in that it does not strive for agreement or compromise. It drives for consensus.
Zuma’s archetype was the profound one to be profiled into the leadership of Process C given his remarkable management of his intra-psychic conflicts, especially his ability to drive it to integrate and achieve a greater wholeness in the group as evidenced in Burundi. Of course, there were points of anxiety that could have pushed him over his edges but his prototype endured. Unlike the leadership in Process B, which got projected onto to eventually go over the edge, the leadership in the current process seem to have found immunity against edges via the deep democracy process where consensus is the sole and ultimate goal.
A classic example of where the leadership in Process B stepped on a landmine was when it increased the anxiety with a bureaucratic approach to basic service delivery for the minority in power. This wedged in an edge between the majority in power- individuals with rank and privilege, power in status- and the minority- the disavowed part of the group. Eventually, there was passive aggressive behaviour that threatened violence and non-compliance if not heard.
The dire need for a strategy to have Process C run in full steam invoked a ghost role- someone (Motlanthe) who eventually was inextricably drawn in to play a role that he did not associate himself with- to care take the transition process. His reluctance was a clear example of a leader being used in a conflict to fulfil a role they would normally shun.
The leadership in Process C, utilising the deep democracy tool, immediately contained the edges internally (soft containment) and externally (hard containment) by consulting broadly with the minority in power and reaching a consensus that had to be included in the new way forward and ultimately in the manifesto. Re-assurance, empathy, non-judgemental and on the other hand: policies, procedures, structure- were infused in the containments. The polarisations were crucial and key to ensure that transformation happens, hence the emergence of a transcendent third- the current inclusive leadership.
For this leadership transformation to take effect the whole group was, after the un-banning, painfully forced to embark on a painful 7 Stage Development Process.
• Relationship Building Process-whereby some members of the group negotiated their relationship with one another by personally getting to know each other. Reference: Exiled and local cadres re-uniting, electing the new Leadership-Mandela and then controversially, Mbeki as President and Zuma as Deputy President after Ramaphosa was subtly persuaded to refrain from contesting in ’96.
• Activation of Projections Process- whereby assumptions into opinions of one another are made and eventually projecting onto one another is rife. References: Intellectual v/s herd boy saga; exiles perceived as sell-outs and disorientated to the real needs of the country whereas local activists were perceived as un-globalised and illiterate.
• Managing Differences Process- whereby the group agree to disagree, or less powerful sub-groups choose to become subservient to the more powerful sub-groups. References: Cracks in the tri-partite relationship with Cosatu and the SACP; talk of the divisions within the group itself; the ANCYL publicly lobbying support for Zuma and openly criticising Mbeki in the process.
• Confronting Differences Process- whereby it may no longer be possible for the group to manage differences and pretend that they are not problematic, in which case they may choose open conflict or involve third parties to help address the conflict. References: Leaked NEC meeting minutes to the media, attempts to get Ramaphosa and Mandela to harmonise the conflict and the Polokwane Conference.
• Splitting or Transformation- whereby either the differences are resolved and a transformation process happens or is unable to resolve the differences, and some form of splitting occurs. References: Mbeki is recalled, some ministers follow suit by handing in their resignation letters and the birth of COPE.
• Task Achievement- whereby group members are able to work at the tasks they agree to and are able to use their diversity in order to enhance the task. References: The Polokwane Resolution inclusive of the alliance member’s demands and the Election Manifesto.
• Ending Process- whereby the life stage of a group ends and a there is a re-birth of new life. Reference: Autocracy is defeated by a consultative approach-deep democracy.
The Development Process had all the traits of a true transformation from the point when Motlanthe emerged as a Ghost Role- a third that transcended due to the polarisation between the majority in power and the minority also in power. The Cathartic Process followed suit by free and fair elections with both Process A and B leaders invited to share the inauguration spotlight. The current state of affairs is such that there are ongoing consultations amongst the previous leaders, the caretaker leader and the present leader. This validates the Forgiveness and Reconciliation Process that happened.
As long as groups evolve and transformation remains a process, the group will consistently be forced to change by unstable internal and external factors.
Thapelo Mahlangu, a Group Consultant in his personal capacity, wrote this article.
Reference books and articles: He’le’ne Smit, Sigmund Freud; Carl Jung; Arnold Mindell; Tavistock and Wilfred Bion.
Leigh says:
October 21, 2009 at 9:26 am
The current “Judge for yourself” hosted by Judge Dennis Davis in discussion with Adv Moroka and retired Judge Kriegler is rather interesting.
I was left with the impression that nothing will change unless there are deliberate and direct interventions.
It seems to have been agreed that young White advocates will get work as a matter of course, irrespective of “competence”, skill and abilities.
Black advocates on the other hand need training after which work is not assured. Both Kriegler and Davis have been involved in training of Black advocates for a long while, it was said with little discernable difference.
The way to change that, according to Kriegler, is training for young Black advocates.
There seemed to have been agreement that (in the words of Moroka) there are “dom” White judges and “dom” Black judges.
“Dom” Black judges it turns out are a cause for concern!
@ Maggs
Maggs is right (again.)
The so-called “training” for black advocates is just an excuse to keep blacks down — and instill in them white “liberal” values!
The idea that black advocates are, in general, less experienced — just because it is only in the past few years that most of them have come to practice — is rubbish!
The reason that black litigants like Zuma, Hlophe and Selebi brief white advocates when it comes to the crunch is that they have tragically swallowed the lie that such seniority breeds useful courtroom skills!
Mikhail Dworkin Fassbinder says:
January 14, 2010 at 12:09 pm
Hey Dworky,
Thanks for the clarity over what I heard.
I think my hearing aid must have been turned off and there were no English subtitles.
Since I do not have one, I will make sure to buy a hearing aid, turn it on and listen carefully to the programme again.
Maybe I will ask E Tv for a transcript to assist with my hearing as well.
But then, as usual, you are able to tell me what I hear and what I think, maybe you can tell me what I heard and what I thought.
@ Maggs
No, dear Maggs, I was not purporting to tell you what you heard on ETV.
I was just adding my humble “two cents” worth on the topic in general.
Oh, sorry, I forgot two items:
1. Those white liberal advocates who give up Saturday mornings to conduct training seminars; did you know they do it only because they like to”lord it” over young black advocates?
2. The much higher failure rate of blacks in the bar exam: This has nothing at all to do with the fact that many blacks, in part because of apartheid education, start under a disadvantage. No sir! It is because the white liberal deliberately marks blacks down!
I thought you would like to know this.
Hey Dworky.
The water has been adequately muddied.
Now what?