Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
5 August 2009

Can one buy food from “The Markets”?

When Gill Marcus was appointed Governor of the Reserve Bank, newspapers reported that she was not unfamiliar to “the markets”. Her appointment was widely lauded by political parties and “market analysts”. This despite suggestions that Tito Mboweni was pushed from his job as Governor because Cosatu did not like his suits, his ties, his smile, or maybe his signature on our bank notes.

“Her appointment sends an encouraging message to business and the markets and will have a positive impact on business and investor confidence.” said Busa Chief Executive Officer Jerry Vilakazi.

“The markets” duly responded positively to her appointment and the JSE surged.  Two things bother me about the way her appointment was received.

First, all this talk of “the markets” made me wonder again what exactly “the markets” might be. I have never seen “the markets” the analysts keep talking about and (unlike pornography) would not know it when I saw it. I somehow do not think one can buy pap and wors at “the markets”, nor can one have lunch with “the markets” or take it for a beer.  “The markets” is a bit like that other canard, “the moral fabric of society”.  (I have always wondered whether the “moral fabric” of society is something one uses to make wedding dresses from.)

These things are invisible and intangible, yet they have achieved a mythical status in our society and is often held up as the sum total of wisdom and what is good in our world.

I have a sneaky suspicion that “the markets” (like “the moral fabric”) is really a concept used to describe the prejudices, hidden assumptions and unexamined (but highly debatable) ideological commitments of a very specific group of people who make many of the decisions about stuff that affect our lives (or if they do not make the decisions, they try mightily to influence those decisions to their own best advantage).

“The markets”, so I suspect, is really just a term to describe a group of rich, mostly white, selfish capitalists who believe in a very specific economic system and control much of the levers of the economy and can thus act in often irresponsible ways to give vent to their prejudices to wreck the economy, allow the Rand to tank, or ruin the banking system.  Similarly “the moral fabric of society” sometimes seems like the sum total of the prejudices, moral judgments and religiously inspired bigoted attitudes enforced  on society by self-appointed moral leaders in that society.

Which leads me to my second point. Why were “the markets” so happy about the appointment of Gill Marcus? She was an ANC cadre in exile and on her return from exile took up a post in the ANC’s Department of Information and Publicity where she quickly became one of the ANC’s more prominent voices. As the ANC said in a recent announcement:

Prior to the 1994 elections she criss-crossed the country tirelessly, training ANC media workers and voter educators and accompanied President Mandela on his many forays into the provinces. Marcus played a leading role in determining media poicies for the ANC in the run up to the 1994 elections. Elected to parliament, Marcus quickly established a widely respected reputation for her efficient, effective and no nonsense approach to her position of chairperson of the parliamentary joint Finance committee. She held this position from June 1994 until June 1996 when she was appointed Deputy Minister of Finance.

The appointment of Marcus should therefore have been very worrying to “the markets”. Yet “the markets” have been very happy. Some have suggested the positive reaction of “the markets” and opposition political parties to her appointment can at least partly be blamed on racism. As S’Thembiso Msomi wrote in The Times this morning when he compared the different reaction to the appointment of Marcus and of the new Police Commissioner, Bheki Cele:

In fact, the almost universal acceptance of Marcus’s appointment is in sharp contrast to the negative reaction that followed Mboweni’s first appointment to the post in 1999. He, too, was an ANC loyalist but went on to become one of the most respected heads of the central bank this country has ever seen and those who opposed him initially went on to become some of his staunchest defenders.

In his case, the “cadre deployment” policy clearly yielded the right results for our country. There is a long list of other people whose appointments to various bodies were initially criticised, only for those individuals to later silence their critics by being diligent and fiercely independent in carrying out their assigned duties.

It would be easy, but not entirely correct, to blame the difference in reaction to these appointments to racial prejudices that still prevail in our society.

We live in South Africa, so chances are that Marcus’ race might well have played a role in the positive reaction to her appointment. But I suspect – like Msomi – that the issue is a bit more complex. The reason the appointment of Marcus was hailed by “the markets” and by opposition parties was because Marcus was viewed as a friend of “the markets”.  (She must really be good at keeping people guessing, because Cosatu also thinks she will be its friend.) Because she is white, because she was the Chair of Absa Bank, because she does not dress like a gangster, because she can speak that oracle-like language that “the markets” so admired in Allan Greenspan, she was seen as a “safe” appointment. “One uf us,” the markets would say.

When we agree with the views of the person appointed, he or she is usually seen as a good appointment. When we think the person appointed is an idiot, a crook, a liar or a lazy sod, we will complain about the appointment. One of the (many) factors many people use to decide whether the appointee will be lazy, stupid and corrupt, might well be race, but it is seldom the only reason for their decision. (There are those idiots – both black and white – who use race as their only criteria to decide if an appointment is wise or not, but I would hope such people are in a small minority – even on the JSC.)

Of course, this phenomenon is not limited to white people. It also has a reverse effect. That is why some people actually really believe that John Hlophe would be a good Chief Justice – despite the fact that he is an ethically challenged liar. That is also why some people think Hansie Cronje was not a crook – despite the fact that he tearfully confessed to taking bribes on national television.

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