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
23 November 2007

Trouble at the Bar

Lawyers – especially advocates – are notoriously arrogant, hard-headed and competitive (a stereotype, yes, but this perception is widespread). Well, they are competing for billions of Rands in legal fees (and for the stroking of their ego’s, I suppose) so this should come as no surprise.

But it does mean that the atmosphere that invariably permeates the Bar is not conducive for thoughtful and critical reflection. This results in the kind of unthinking and uncritical condoning and perpetuation of widespread subliminal racism at the Bar by the dominant white advocates.

At the same time advocates are dependent on big law firms and their rich clients to brief them. This means that few of them who are financially successful would rock the boat by challenging the existing institutional culture and racist assumptions at the Bar or (more complexly) by challenging the ingrained racist assumptions of some of the attorneys and their clients dishing out the work.

Understandably there is great bitterness among black advocates about this state of affairs. It does not help that some white lawyers – reflecting the hubris and arrogance of those who dominate the profession – refuse to see the racial issue in all of this and merely claim that black lawyers do not get work because they are not good enough.

Unlike members of academia, say, or big companies who have had to change to get government contracts, many attorneys and advocates involved in the really big commercial work, have had no incentive to change and probably do not think there is a need to change. As chairperson of the KwaZulu-Natal Bar Tayob Aboobaker SC remarked in this morning’s Mail & Guardian :

“We are stuck in a time warp. There is no real desire to change. I know many senior counsel who have never seen a brief from a white law firm for years.”

It is against this background that the fight at the Johannesburg Bar around the condemnation of Judge John Hlophe must be seen. The Mail & Guardian reports that the majority of black advocates are boycotting meetings of the Johannesburg Bar and reconsidering their membership after two white advocates tabled a resolution asking for Hlophe to step down.

I assume most black lawyers do not condone the actions of Judge Hlophe – which remains stupid and unethical – but that they feel that this is just another stick with which the rich, white, status-quo-loving advocates wish to beat all black people.

If we had had real transformation in the legal profession and if the majority of white lawyers at the Johannesburg Bar had really embraced transformation and all that goes along with it, I suspect the majority of black lawyers would not have resisted censure of Judge Hlophe. This is the tragedy of living in our stuffed up country.

But having said all that, I still think the black advocates are making a huge mistake by using the Hlophe issue to try and spearhead transformation at the Bar. Fact is that Judge Hlophe did take more than R500 000 from Oasis, lied about the nature of the payments and probably about much else instead and continues to serve blithely as Judge President -even requesting the state to provide him with a Porsche!

To try and defend him, or to try and make an argument on process grounds why we should not criticise him and call for his resignation because the complaint against him was launched by white lawyers or because white lawyers have used his indiscretions to reinforce their own racial prejudices is to hand power back to the racists.

>If one cannot condemn deeply problematic and unethical actions of a judge, actions which ahd besmirched his name and the integrity of the judiciary as a whole merely because that judge happens to be black and has white detractors, then one is not a free agent but a prisoner of the racist paradigm one is supposedly resisting.

There are so many other issues on which advocates for transformation and the Black lawyers Association could take a stand to try and attack the complacency and smug refusal to acknowledge racial problems of many white advocates. Using Judge Hlophe’s case to do so is unwise, unethical and, quite frankly, not in the spirit of Steve Biko.

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