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
15 September 2009

On silence, patronising interventions and the duty to speak out

Ken Owen, the sharp-tongued commentator who used to edit the Sunday Times, has been having a fascinating argument about the Hlophe debacle with various other white commentators in the pages of Business Day. His argument is essentially that white people should shut up about the raping of the Rule of Law by the JSC, because if they do not, their self-important bleating will provide cover for the charlatans and self-serving crooks who will use “racial solidarity” to whip black lawyers and politicians into “line”.

In the latest salvo he takes on Jonny Steinberg and George Devenish, who previously argued that whites should not act like second class citizens and that whites therefore have a right and a duty to speak out about injustice and the abuse of power. When white people say nothing and do nothing we might well end up like Zimbabwe. Owen responds:

Mr Steinberg attributes the implosion of Zimbabwe to the “arrangement” by which whites kept clear of politics. Prof Devenish similarly assumes that the battle for the constitution must be lost if no white bwana comes to the rescue. Both cast their arguments in a macho idiom that reminds me of the ambassador in Andre Brink’s early novel: “Ek is ’n boere-diplomaat, ek neuk my pad oop”.

Perhaps we should open the debate on racism that so many people are demanding. I start with Malcolm X and Steve Biko, both of whom said in slightly different words: Black man, get on your feet! Certainly it is time to shed the idea that black people can only be successful (or prosperous, or happy, or free, or brave) if whites do something, or refrain from doing something. If we are to make progress, we must put responsibility where it belongs: Zimbabwe is not a failed state because whites avoided involvement in politics, but because President Robert Mugabe and the ruling Zanu (PF) ruined it.

SA’s judiciary will not be rescued if Judge Johann Kriegler pursues his case, nor will it be doomed if he abandons it. The threat to the rule of law comes from black lawyers who are hustling for jobs, status and power in the name of “transformation”, and they can best be stopped if other black lawyers force them to face up to their responsibility and to the consequences of their rampant ambition. Given our history, whites are wise to avoid preaching to them.

The apartheid mindset, which casts blacks as forever victims and whites as forever missionaries is as pernicious as it is tiresome. I recently heard a man blaming baby rapes on “colonialism”, which makes as much sense as blaming a tiny white minority for the rape of Zimbabwe, or making Judge Kriegler responsible for the current rape of the rule of law.

Judge Kriegler tells me there are many excellent black lawyers who share his concerns. If so, where the hell are they? They don’t need Judge Kriegler to nanny them. At most, Judge Kriegler should listen to them carefully, follow their lead, and discreetly give what support they want. Instead, by prominently seizing the issue, he has made them vulnerable to the charge of being Uncle Toms, and they have all scuttled off into the underbrush. Racial solidarity has trumped all else.

Nobody doubts Judge Kriegler’s courage but whether he is wise to go charging at windmills is another matter, even if he has a couple of Sancho Panzas like Mr Steinberg and Prof Devenish bringing up his rear. The only useful question to ask is whether black lawyers want the rule of law and are prepared to fight for it; if not, there is nothing Judge Kriegler can do about it.

Some of Owen’s views are confirmed by the remarkable piece published by Ngoako Ramatlhodi in the Sunday Times on Sunday, where he writes with a certain (unwitting?) candour about why the Hlophe scandal is being swept under the carpet:

In this matter Judge Kriegler seeks to compel the JSC to conduct a public interrogation of all the judges involved, including the outgoing chief justice. All of them were appointed to the bench post-1994. In that eventuality, there is bound to be public wrestling among the most senior black jurists in the country, as each side will seek to prove the other to be less forthcoming with the truth. The opponents of transformation will then bask in glory as the self prophecy of “untrustworthiness” is fulfilled. Some will then say: “We told you that blacks cannot be trusted with the judiciary.”

What Ramatlhodi seems to say is that cross examination of the complainants cannot be allowed because it might well expose one or more (black) judges as liars and this will confirm the racial prejudices of some whites about black people. This statement is remarkable – especially in the week that we commemorate the death of Steve Biko – because it amounts to an admission by Ramatlhodi that his beliefs and actions are wholly determined by whites. There is no agency there. Only actions determined by a fear of what some white people might think and say. One always acts in response to white racism – never in an  independent, proud, strong, or principled way, but always shackled to fears about what whites may say and do and thus imprisoned by white racism.

This is a terribly depressing and defeatist admission to make. It seems to me like the admission of someone who has internalised the racist bigotry of white South Africa, someone whose mind is not free, someone who should read more Biko and less Mbeki. But it also reminds us of where we come from and how apartheid prejudices and race hatred have been internalised by people like Ramathlodi.

In this context, Owen is obviously correct when he says whites should not act as if they and they alone can save our society. That would be terribly arrogant and, yes, racist. I agree with him that some whites act as if black people can only be successful if whites do something or refrain from doing something. Clearly that attitude, which is rife in our society, is deeply insulting and racist.

Where I depart ways with Owen is where he says that his view means whites must shut up completely about what happens politically and legally in South Africa. That seems to me just as patronising as the actions of Kriegler, because if one does that and say, well let black people either save us or ruin us on their own, one in effect holds black people to a lower standard than whites. If one is prepared to speak out about the stupidities, corruption and greed of whites, why let black people off the hook? 

The trick, I think, is to speak out boldly and fearlessly about the injustice, abuse of power and general stupidity and arrogance of South Africans of all races (not selectively only of black South Africans!), without acting as if one thinks one is the saviour of (black) South Africans. If one speaks out one must remember that one is just one small voice among many voices of all races trying to make a small difference in an honest, non-patronising way.

If I speak out, it is decidedly not because I believe only whites have a monopoly on what is right and principled and that only whites can save our judiciary and our country from the greedy crooks of all races sitting in (often untransformed) board rooms, parastatals and in government. It is because I think it is profoundly patronising and deeply insulting to hold black people to a lower standard than whites (like Ramatlhodhi wants to do) merely because some white people might mistake criticism of black people for a confirmation of their racist views.

Stuff those racist whites, I say. Why should my or anyone else’s actions be determined by such racist bastards? Why give them all the power?

It is also because I believe in the Constitution and the values and rights enshrined in it, which confirms that I am not a second class citizen because of my race, gender, sexual orientation, health or other status. Why would I shut up just because self-hating black people like Ramatlhodi and Paul Ngobeni say I should because they have not themselves freed their minds of white racism?

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