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
17 February 2009

Race, class and affirmative action

I am in Salvador de Bahia in Brazil and the streets are teeming with people preparing for carnival. This city was the port through which slaves from Africa were imported into Brazil and today the population is still 80% black. But the weird thing is, when I got on the plane from Sao Paulo, there were only two black people on the flight.

Not so weird really, because in Brazil until very recently there was no public or private affirmative action programmes and the official discourse has been one of non-racialism – officially there is no race and no racims in Brazil.

But if one starts reading about Brazil one soon finds out that there is indeed such a thing as race – although the law has not discriminated oficially against black people for many years. Race is lived by people and race also, to some degree, determines their place and status in society. And because of the official ¨non-racilism¨ there has been no reconing with the slave past.

So although almost 50% of the people of Brazil are not white, the top echelons of the government, judiciary and other elite institutions are almost exclusively staffed by white people. No wonder there were hardly any black people on the flight to Salvador.

Which makes me wonder whether those in South Africa (some COPE members? DA types?) who argue that affirmative action should be dealt with in terms of class and not race are not very, very wrong. Could it be possible that because of the oficial colour blind stance of the government, racism and racial prejudice is socially perpetuated almost just as effectivcely as apartheid was perpetuated with the assistance of legislation?

I am still reading up on this phenomenon, but at this stage I would have had to be blind not to see how poverty in Brazil is racialised and I would have to be stupid not to ask why, despite the fact that there is no official apartheid and have not been for more than a hundred years, black people are still the one´s cleaning the streets and white people are the one mostly sitting around sipping beer.

At least in Salvador black people are the majority and it is far more mixed than in other parts of Brazil. This is not Cape Town. But I would recommend a trip to Brazil to Helen Zille and Mosieu Lekota who talk about an ¨opportunity society¨¨ but do not seem too keen on oficially sanctioned, race based, affirmative action. Without it, I wonder, will there ever really be equal oportunities for all in South Africa?

Me thinks not.

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