How to defend the indefensible

This morning I unexpectedly found myself on E-TV, once again debating Mr Paul Ngobeni. (The producers failed to inform me of Mr Ngobeni’s presence.) The topic was – once again – whether it was wise to launch a legal challenge  against the Judicial Services Commission (JSC) decision not to investigate the complaints by John Hlophe and the judges of the Constitutional Court against each another.

Mr Ngobeni, predictably, argued that challenging the decision was racist. I, predictably, argued that challenging the seemingly irrational decision of the JSC was not in itself racist. This was, of course, not an argument I could ever  conclusively win. Given the fact that I am white and Mr Ngobeni is black, many (but by no means all) viewers would have responded emotionally and would have supported the position of the person whose race they happen to share.

I really do not want to rehash the substantive arguments here. Most people who follow the news have made up their minds on this issue. This has become such a charged issue that it now has far less to do with logic and reason than with emotion, fear and hatred (which, can of course, also be logical).

Rather, I propose to take Mr Ngobeni’s charge seriously. After all, I always argue for reasoned and honest reflection and debate, so should I not honestly and calmly consider the possibility that Mr Ngobeni has a point? Logic, reason and the law aside, could it perhaps be that those of us who believe that the JSC erred in not conducting a full hearing where all the witnesses are cross-examined, are animated by racism?

Let us start with the strongest argument proffered by Mr Ngobeni, namely that  those of us who question the  legal basis of the decision by the JSC to sweep the matter under the carpet are guilty of a profound racist double-standard. We, so the argument goes, hold black people in public life to a far higher standard than we hold white people in public life. For example, why have we not made a bigger hullabaloo about magistrate Johan Herselman, who was recently found guilty of hate speech for calling Khayalethu Geleba a baboon?

It would, of course, be tempting to dismiss this argument by pointing out that the actions of an ordinary magistrate – no matter how disgusting such actions might be – are, in the bigger scheme of things, far less important for our judiciary and our constitutional state, than the actions of a Judge President and the judges of the Constitutional Court.  Magistrates have no power to declare invalid the actions of the executive or the legislature, while a Judge President and the judges of the Constitutional Court  do.

To my mind, this argument could be open to challenge. Most South Africans who get into contact with the legal system do so at the level of the magistracy, so the shocking racism of a magistrate could have a profound effect on the daily lives of ordinary South Africans. Should we not make a bigger stink about the actions of such a magistrate exactly because his actions will potentially affect the lives of ordinary people in a much more immediate way than the decisions of the Constitutional Court ever will?

I am therefore ready to concede that it is not unreasonable to argue that the obsessive focus by the media and commentators like myself on John Hlophe and the Constitutional Court – to the exclusion of other issues – might in part be explained by a double standard. Moreover, I have often written about the phenomenon – informed by implicit but unexamined racism – of some white people holding black people to a higher standard than they do fellow whites.  In many organisations still dominated by white South Africans, new black appointees find that they have to “prove” their competence while the competence of new white staff are assumed.

It is therefore understandable that many people would be suspicious of any action which – if successful – might expose a black judge (or more than one black judge) to a finding of gross misconduct. I would therefore further concede that it might well be that some people clamouring for a full hearing of the various complaints by Hlophe and the Constitutional Court judges, are animated by racism.

However, in my opinion, Mr Ngobeni’s argument falters when he uses the above to try and discredit anyone who insists that the JSC acted unlawfully when it made its decision or anyone who wishes to see the various complaints properly dealt with on the basis that they must be racist.

First, the two judges on the JSC both voted with the minority to have a full hearing of the complaints of both Hlophe and the Constitutional Court judges. As judges, they must surely be the individuals on the JSC best placed to make a legal finding on this matter and their opinion should be accorded some weight. Both these judges happen to be black. Is it really plausible to argue that they were animated by racism?

Second, even if we agree that racism has motivated some to challenge the decision of the JSC, this does not take us any further when considering the merits of the case. If a legal decision is wrongly taken, that decision cannot miraculously become lawful because some people who point out the legal flaws in the decision happen to be animated by ulterior motives.

An example: Say a building is on fire and an employee – who wishes to harm his bosses and to knock off early so that he can go home to watch the Bafana-Bafana game on TV – alerts everyone to the fire, the ulterior motive of the employee will not change the fact that the building is on fire. If nothing is done and the employee’s alert is ignored, everyone in the building will be killed. Facts do not change because they are pointed out by someone with an ulterior purpose.

Of course, it might be argued that there might be no fire at all and the employee may have made up the story of the fire for an ulterior purpose. But to know that, it would be necessary for someone to go and check whether there is a fire or not.  Similarly, there might be nothing wrong with the legality of the JSC decision (although no credible lawyer has made such an argument), but to establish this fact, it would be necessary to have the decision reviewed. To insist that the decision should be reviewed can therefore not with certainty be said to be animated by racism.

This leads us necessarily to the conclusion that those who argue that the JSC decision should not be reviewed and that anyone who expresses criticism of the decision of the JSC is racist, is attempting to stop any effort to establish the legality of the JSC decision and of getting to the truth. If one shouts “racism”, one does not have to engage with the legality of the JSC decision (or the fact that either Hlophe or the judges of the Constitutional Court lied under oath) and one need not engage with the real issues.

The allegations of racism against those who criticise the JSC decision therefore provides strong evidence that those who wish to sweep this whole saga under the carpet knows that the JSC decision cannot be defended on legal grounds and suspects that cross-examination will be potentially disastrous for the person(s) whom they support. It is tantamount to an admission that the JSC decision is indefensible – on legal grounds at least – and that the individual(s) they support lied.

A more honest argument – made by some readers of this Blog – is to admit that the JSC decision is not really defensible on legal grounds, but to argue on purely pragmatic grounds that it should not be attacked. “We know the JSC made a decision that is stupid and harmful, but more harm will be done by saying so because it will further fan the flames  and destabilise the judiciary.”

I disagree with this argument, but at least it is honest. To extend my metaphor I would say: “If we do not send someone to check whether there is a fire or not and continue with our work, we might all burn to death. Rather be on the safe side. Surely we do not all want to die?”

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