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
13 May 2007

Racial solidarity of the worst kind

The Mail & Guardian says that Judge Siraj Desai has been reported to the JSC by the Pan-Africanist Congress (PAC) chairperson in Gauteng, Thami ka Plaatjie, who claimed Desai did not have the “impeccable character” needed in a judge. Desai is embroiled in a defamation action against Oasis, the company who had paid Judge President John Hlophe up to R500 000 for “out of pocket expenses” after which Hlophe miraculously gave permission to Oasis to sue Desai.

Plaatjie denied that his complaint was part of an Africanist campaign against Desai. “All judges are open to scrutiny by the public. This is not witch-hunting. The same scrutiny that the judge president is subjected to, surely other people should face the same scrutiny?” Plaatjie said.

For his part, Desai said: “A very dirty war is being waged against me. I shall defend myself at each phase at it comes up.”
Judge Desai is no angel and has a tendency to shoot from the hip, but it is difficult not to agree with him about the sinister motives of Mr. Plaatjie in this matter. This is an obvious manifestation of the worst kind of racial solidarity. Just because Judge Hlophe is black “African” and judge Desai is black from Indian descent, some among us seem to think that Judge Hlophe must be protected and defended – no matter what he might have done.

But why defend the indefensible? O dear, it must be because Mr. Plaatjie has been afflicted by the Hansie Cronje syndrome. Who cares if the person is a deeply flawed human being enveloped in the stench of corruption? Who cares if he is so self-centered and self-righteous that he would be prepared to destroy the judicial system rather than do the honourable thing and resign? Just because he is of the same race, the man shall be defended.

Mr. Plaatjie is a representative of the PAC, an organisation that is supposed to be steeped in the values of Black Consciousness. Sadly, this kind of racial solidarity seems to fly in the face of everything Steve Biko stood for.

It is true that many white people show solidarity with members of their own race because the deeply ingrained racism of our culture allows them instinctively to trust and defend others who are like them. It’s an attitude that is often unspoken but that suggests: “He is white so he could not possibly have done something wrong.”

I suspect, though, that given the power that racism still exert in our society, many black people who show racial solidarity do so in response to and as a defense against white racism and white power. The unspoken rule here could be: “If white people criticize black people we have to defend them because we really are defending all black people against prejudice.”

It is a bit foolhardy for me to say this as a white person, but I think that this attitude is unwise and that the knee-jerk defense of even the most ethically challenged person flies in the face of what Steve Biko would have wanted. By responding to criticism of a black person in a defensive manner – no matter what that person might have done – one is according power to the white racists against whom one is railing. They still dictate one’s actions and that means ones mind is not free and one is still shackled to “white think”.

It is only when we move away from our habits of racial solidarity that we – white and black – can really liberate ourselves from the racist past. It is a pity that a person like Mr. Plaatjie – who really should know better – seems imprisoned by a white racist discourse without even realising it.

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