Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
22 June 2009

On debate, analysis and “objectivity”

Life is a bit like a poker game – only, real people can get hurt in life. Some people, when dealt a really bad hand, would bluff and bluster in the hope of distracting attention from the bad hand he or she was dealt. Others would fold their hand and hope to get dealt a better hand next time.

It seems to me I am more of the latter kind of person while Paul Ngobeni is the first.

So I was rather amused when I read in this morning’s paper that I am a racist who hates black people.  I was also a little bit proud because it means that I have been winning the argument on the actual substance of whether John Hlophe is fit to serve on any court in South Africa. Why else the personal attacks? If the arguments were not effective it would not have been necessary to attack me. The Cape Times Reports that Ngobeni said:

“An objective analyst does not get very, very angry. That will cloud your vision and your objectivity,” said Ngobeni. He accused De Vos of being a racist who hated Hlophe “with a passion, even when the man was sick” referring to an incident when the judge president had failed to turn up at the JSC for the case against him. Saying that he would continue to engage him and expose him as a phony, Ngobeni added De Vos would be joining a special group at UCT’s law faculty.

“This guy will be joining a group of gangsters who make (John) Hlophe their do-or-die issue. Whites want to entrench themselves in the last unelected branch of government – the judiciary,” said Ngobeni.

What a wonderful thing free speech and democracy is. We can all say almost anything we wish – even if it is not true. Informed people can then make up their minds about who is credible and whose arguments should win the day. So much better than in the apartheid days when people were banned and newspapers censored. One thing is sure, those who fall back on invective and name calling have lost the argument on the substance of any issue. 

So I really do not want to get involved in a personal spat with Mr Ngobeni. When I met him at a debate he seemed rather sad and vulnerable and even more of a nerd than I am. As somone who used to be bullied at school, I could somehow relate to his plight. In any case, the issues facing our democracy are far more important than the personalities involved, so its better to discuss questions about whether a liar and an ethically challenged person should become Chief Justice or not. That seems rather more important than what either Ngobeni or myself might think or say about one another.

Just two points: Ngobeni is free to express an opinion that I hate John Hlophe and that I am a racist. This would be wrong. It would also be a tactic to divert attention from the real issue about Hlophe’s fitness for any office, given his scandalous behaviour, but, hey, that is all part of the game. However, Ngobeni said that I had WRITTEN on this Blog that I hate Hlope. That is untrue. In his response to the Cpape Times, he does not deal with this fact, attacking me because I had caught him out in a blatant lie.

Second, Ngobeni makes an intersting observation about “objectivity”. He says my analysis cannot be trusted because I said that Hlophe’s actions made me very, very angry. This is a rather quiant and old fashioned view and reminds one of the kind of attitudes that was prevalent in the apartheid years in our legal fraternity.

I respectfully disagree with his basic assumption as I think it is based on a misconception that is philospophically untenable – as Ronald Suresh Roberts so nicely pointed out in last week’s Mail & Guardian. If one provides comment and analysis one must of course be as fair as one can possibly be. But we all live in some kind of ethical universe and it would be foolish to deny this or to try and pretend it is not so. We cannot extract ourselves from our own ethical and ideological commitments. What we can do is to place those commitments on the table and acknowledge them, then to strive for open-minded and fair analysis of the issue well aware that we have a point of view and prepared to revisit our commitments.

My ethical universe is one in which human rights, democracy, respect for the rule of law, honesty and integrity play an important role. So if 800 000 people are slaughtered in a genocide in Rwanda I will get very, very angry and will say so if asked for my analysis of the situation. If politicians or officials steal poor people’s money, treat them with contempt or disregard the Rule of Law then I will get very very angry, yes. If I did not, I would not be doing my job.

Maybe somehwhere in the world there is someone who will say they can comment “objectively”, say, about the Holocaust, analysing the methods used by the Nazi’s in exterminating six million Jews and discussing the relative effectiveness of the various methods used. I would argue this is not objectivity – as there can never be absolute objectivity, only fairness and honesty – but a horrible endorsement of the Nazi regime and their excesses.

Sometimes a failure to get angry is also a display of moral and ethical cowardice or a choice for unethical and immoral acts. Not to get angry when politicians and offiocials treat people with contempt is not “objectivity” but, in effect, a heartless endorsement of the unethical behaviour. Silence or a lack of anger about ethical questions is often no more than an endorsement of what is wrong.

So if one does not get angry about John Hlophe and his antics, I would argue, one is really endorsing his lies and his unethical behaviour. One might call this objectivity, but that would just be a pretty word with no meaning anymore.

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