As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
By Jaco Barnard-Naudé
The controversy sparked by attorney Richard Spoor’s recent remarks which boils down to ‘I basically only brief white counsel because only white counsel is prepared to work for a reduced rate and only white counsel is exceptional (and therefore, acceptable)’, again raised the spectre of what Unites States constitutional theorist Karl Klare described (already in 1998) as a potentially catastrophic disconnect between, on the one hand, the legal culture that post-apartheid South Africa inherited from Apartheid and the transformative Constitution that it adopted, on the other hand.
With the phrase ‘legal culture’, Klare indicated that he meant ‘professional sensibilities, habits of mind, and intellectual reflexes’ that dominate in the legal profession. He explicitly singled out two questions that one should be asking when you are trying to gauge legal culture: ‘What enduring political and ethical commitments influence professional discourse? What understandings of and assumptions about politics, social life and justice?’
When we ask these questions about Spoor’s remarks, it is perhaps best to defer to how a jury of his peers has responded: on all sides of the racial and gender divide, they were – rightly – outraged. More than a hundred of them went on record, deploring the ‘racist sting’ of the remarks. In a flurry of responses, everyone from Geoff Budlender SC to Nadel to the Legal Resources Centre to Wim Trengove SC distanced themselves from the shocking remarks, with assertions that more needs to be done to promote black and female colleagues in the profession which is about as trite as saying that white, heterosexual, men continue to dominate the South African legal profession. Many more were hurt, others, like myself, stupefied by the bigotry of a man that really has no excuse.
We should be careful not to mistake these spirited responses for the dominant legal culture in South Africa, so that Spoor’s remarks could be easily dismissed as representative of a small minority on the periphery of the profession. Sad and disappointing as it is, Spoor’s remarks, challenged as they appropriately were, silently endorsed as they no doubt also were, are indicative of the dominant legal culture in South Africa. No one is saying that Spoor’s views should automatically be imputed to all white, male legal professionals in South Africa and no one is saying that all Black or female or gay professionals are progressive, simply by virtue of their gender or the colour of their skin. I can think of at least one gay SC who I would not by any imaginable means describe as progressive.
If it was not that Spoor’s remarks represent the dominant ideology, the structural lack, ie the widely reported grossly skewed briefing patterns despite a significantly improved representation of non-white advocates since 1994, would not have been so glaring. In a certain sense, the view that Spoor speaks for legal culture is confirmed by the tenor of the statement read by Johannesburg Bar Council Chair Dali Mpofu which nicely reflects the tension Klare discerned between a reactionary legal culture and the progressive constitution: ‘We reject these blanket and unwarranted attacks on us and other black colleagues as untrue and motivated by the kind of racial bigotry and prejudice which is inimical to and in gross violation of the spirit and letter of our democratic constitution’.
Many commentators reduce the problematic here to a clear and present lack of representation. But this, however, is where the problem begins and not where it ends. If we look at Klare’s definition of legal culture, it is overwhelmingly clear that legal culture is a mentality, an approach to the practice of law, a consciousness. We may ask, therefore, what legal mentality continues to dominate culture in the profession today. Which sentiments hold hegemony? If the events surrounding the Spoor remarks are anything to go by, which I think they are, some unflattering adjectives to describe this dominant mentality, have already presented themselves. I won’t dwell on the latter, except for saying that I describe it to my students as an ‘apart-heid’ mentality.
As legal actors, we often fail to appreciate just how powerful legal culture as a prevailing or enduring mentality can be. The full extent of the problem was described in 1990 by Prof Frances Olsen (of UCLA), in a (now seminal) article, entitled the ‘The Sex of Law’. Olsen described how the dominant legal culture (White, male and heterosexual) is written into the substance of law to the effect that the dominant legal culture is reflected in the law books. On this basis, Olsen argued that it is, for instance, no coincidence that domestic violence law only arrived relatively late on the modern legal scene – it is ascribable to the representative lack of women in the profession as well as to the lack of feminism as a disposition in the legal text: the sex of law, in other words, is also the text of law. Legal culture has the power to shape ideas and reactions to legal problems both subtly and more prominently – what dominates in the life of law, dominates in the legal text. Law is both a generative and more commonly an interpretive scheme – and authoritative interpretation is always an exercise of power and as such, a function of dominance. ‘Authoritative interpretation’ of course occurs at the level of adjudication which is the work of judges. But a judge’s work does not take place in a vacuum, just as Parliament’s work does not, although at it times seems to think otherwise, does not take place outside society. Adjudication as interpretation is constrained and enabled by precisely those professionals (advocates and attorneys) that are in the spotlight as a result of Spoor’s discourse.
Klare argued that a conservative mode of thought continues to pervade adjudication in South Africa and thus poses a significant constraint on the realization of the Constitution’s transformative demands. The example I often give of post-apartheid legal culture as still pervaded by an apart-heid mentality is that of those lawyers who argue that, somehow, the Roman-Dutch and English common law from the apartheid-era has an existence apart or autonomous from the Constitution, independent of its demands and aspirations and quite regardless of the ‘supremacy clause’, which explicitly states that law and conduct inconsistent with the Constitution is invalid.
This is dogmatic apartheid logic at its worst: it suggest that the colonial product has the quality of a magical object that holds superior and mystical powers that only certain well-educated ‘summa cum laude’ graduates can divine. As you can see, the argument for the common law’s ‘autonomy’ is not directly racist, but it is doubtless seated in an ideology of colonial supremacy – a sentiment that is inconsistent with the Constitution and that the Constitutional Court’s jurisprudence has undermined to the chagrin of many a dogmatist.
As I indicated above, this conservative mode of thought is not by any means limited to the judiciary – it is a symptom of the profession as a whole. A few years ago, Sanele Sibanda from the Law Faculty at Wits, built on this point and argued that ‘transformative constitutionalism’ (the name that Klare gave to a progressive reading of South Africa’s legal revolution) should be understood as, inter alia, a pro-poor, pro-equality, anti-colonial juridical consciousness that would have to be adopted in all three branches of government (and, I would suggest, by all South Africans, including, private wealth and corporate capital) if we are at all to extend the legitimacy of the Constitution and the post-apartheid State on which it is founded.
Recent events in South Africa suggest that the Constitution’s legitimacy is being vehemently debated, to put it mildly. The worrying trend is that the participants in this debate are from opposing corners of the political playing field. For the ever whining white Right, the Constitution has always been too liberal, for the Left it is not ‘socialist’ enough.
It is particularly the political promises that the Constitution encodes and the non-fulfilment or inadequate realization of these promises that has given rise to unprecedented levels of frustration and outrage. In response, the ruling hegemony has become paranoid and securocratic to the point that the comparison with the apartheid regime can no longer be dismissed as far-fetched nonsense. On the other hand, few seem alive today to the impossibilities that the global neoliberal financialisation of political economy generate and maintain for the postcolony.
Instead, South Africa is treated as if it is somehow at a safe remove from the condition of injustice that is now situated at the planetary level. Whether it is capitalism with ‘Asian values’ (now also territorially externalized to Africa) or the imposition, virtually at gunpoint, of austerity by supra-national institutions in Europe, or plain old American neo-colonialism, the fact of the matter is that global levels of inequality (and discontent) continue to rise. The apartheid statistic of the 20% versus the 80% is no longer an adequate descriptor. We live in the world of the 99% and the 1%. It is foolish to think that the latter split applies only economically or materially – for it applies at least as effectively at the level of ideology and culture.
Against this backdrop, we should all welcome a small flicker of light at the end of what appears to be an infinitely dark tunnel, when over 90% of the Johannesburg Bar Council adopted a new rule that where there is a team of three or more counsel on brief in a matter at least one of them should be black. The decision is an indication that the hegemony which endorses a ‘whites only’ briefing practice is beginning to give way to a transformative consciousness in legal culture, more congruent with a progressive and constitutionally orientated direction. As the saying goes, rather late than never.
There is no reason as yet to adopt the cynical, even racist, position that such a change in representation will make no difference to legal outcomes. After all, the change in political representation that marked the transition did bring about enormous changes in the socio-political and legal landscape – South Africa, to paraphrase a recent remark by Achille Mbembe, is not the colony it used to be. Unfortunately, the logic of coloniality, of apartheid forms of thinking, haunts the postcolony in an all too fractious a manner.
If we are really serious about our commitment to the transformative Constitution, then it is high time not only to reflect self-critically on the ways in which the ghost of the past is impairing our progress to the society envisioned by the Constitution, but also high time to fashion our conduct and behavior in ways that demonstrate that commitment. ‘Structures do not walk the streets’, proclaimed the students of the 1968 uprisings. Allegiance to this slogan does not, however, mean that somehow structural intervention is not desirable or necessary. Of course it is. What the slogan does convey is that structural formations consist of people and relationships – there is no such thing as ‘the market’ who is ‘disappointed’, or ‘the State’ who is ‘brutal’. To bring us back to legal culture: there are formations of legal actors within the profession that make up its culture and interventions such as that of the Johannesburg Bar are structural interventions to the extent that they are aimed at transforming by opening up, a conservative and pernicious formation.
Jaco Barnard-Naudé is Professor of Jurisprudence in the Department of Private Law and Acting Director of Research in the Faculty of Law at the University of Cape Town.