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.
Humans – despite our intellect and capacity for feeling and abstract thought – have a tendency to talk and think in slogans. Life is complex and time is of the essence, so only the most vigorous (and tiresome) intellectuals (no, I am not thinking of Xolela Mangcu) always make an effort to interrogate the terminology they deploy every day when they try to make themselves understood. This is not always such a bad thing because often most of us have a common understanding of what these slogans mean and use them to make our lives easier.
But sometimes the same slogan can mean wildly different things to different people, which allows people to think that they really agree with one another when in reality they are worlds apart. Slogans which attempt to encapsulate a laudable goal but ultimately have a fuzzy meaning can also be used by unscrupulous people to achieve nefarious ends. One such a slogan – much in the news lately – is “transformation”.
Most of us constitutionalists, for example, think that “transformation” is a good thing. Like motherhood and apple pie, only fringe elements will dare to suggest that transformation in and of itself is problematic. Although the term is not used in the Constitution, academics and judges of our Constitutional Court have often stated that ours is a transformative Constitution and have emphasised the ethical and political necessity of such transformation. But, as it turns out, we do not share a common understanding of what this term might mean.
Justice Malala’s column this morning in The Times in which he deals with the talk of “transformation” of the judiciary and the new appointments to the Judicial Services Commission (JSC) gets to the heart of the matter:
Both the JSC and the judiciary are likely to be filled with some of the most conservative, gender-insensitive, undemocratic and intolerant individuals in society — essentially people not cut from the cloth of the ANC’s own fabric. That reality will derive from the fallacy that because someone is black, and ticks the space in the “transformation” box, then they hold progressive views.
The truth is that not all black advocates are fit to be judges. There are blacks all over the country and in the judiciary who do not embrace the non-racial, non-sexist, democratic values enshrined in the Constitution. There are potential judges who would very easily turn against our progressive laws on abortion and homophobia, for example. Being black does not mean an advocate or judge upholds the values enshrined in our Constitution.
Blacks are not a special people. We laugh and we cry, we oppress and are oppressed. We are human. Among us blacks there are some of the most conservative people and perspectives one can find. Not all black people are progressive….. There was a chilling moment last week when Senior Counsel Torquil Paterson appeared before the JSC in Cape Town. Ntsebeza, according to the Sapa report, asked Paterson how his (Paterson’s) potential appointment as a judge on the Eastern Cape bench could possibly further transformation, because he was white.
“Ntsebeza insisted, until the advocate conceded, that ‘the demographics would not be enhanced by appointing more white judges’. “‘That’s all I wanted you to say,’ said Ntsebeza.”
Now, I don’t know who Paterson is. However, if Paterson is excluded only on the basis that he will not “enhance the demographics”, then there is a problem here. Worse, if a black candidate is appointed merely because he or she enhances the demographics, then we are truly in trouble.
This is the danger. We fail to ask ourselves what “transformation” truly means, and make black faces the only measure of how far we have transformed.
I could not agree more. We need to ask ourselves, what do we talk about when we talk about transformation? As this is a question now hotly contested in the legal field, I will focus on “transformation” in the legal arena. There seems to be at least three (but probably many more) different answers to this question.
First, there is the view espoused by individuals like Dumisa Ntsebeza, which seems to view “transformation” as a demand for the transfer of political, legal and economic power from one racial elite to another, a view based on a kind of race essentialism. This group of individuals bristles at the injustice and indignity of a legal profession and system that is still largely dominated by white individuals and the supposedly superior values of the white minority culture.
Noting – correctly – the economic and cultural marginalisation of black lawyers and the kind of snooty arrogance of some white lawyers, and believing that one’s race determines who one is, what one thinks and how one will act, this group sees “transformation” purely as a “numbers game”. Black lawyers must replace white lawyers in leadership positions at all levels of the profession and in the judiciary to effect “transformation”. For this group “transformation” is really about a transfer of power from a white elite to a black elite within the existing system, so the better for the black elite to share in the spoils that rich whites now selfishly try to keep for themselves.
A second (to my mind, better) view, espoused by Malala and many constitutionalists, is that “transformation” is really about the achievement of a society that embraces the progressive values enshrined in our Constitution. While racial and gender representation in the legal profession and the judiciary is important, the most important goal of transformation is to create a system which respects diversity and the human dignity of all – regardless of their race, sex, gender or sexual orientation.
Race is just a construct and does not tell us with certainty who a person is, what he or she will think, or how he or she will act. Unlike the first group, this second group casts a critical eye on the social relations entrenched in our society and see patriarchy, sexism, homophobia and a lack of respect for difference and feels that “transformation” must fundamentally address the deeply oppressive traditional value system (ironically shared by many white and black patriarchal elites) and must help move us into the light of a modern, progressive state.
But there is also a third view, I think, which attempts to marry aspects of the two previously discussed views of “transformation”. On the one hand this view rejects the race essentialism and the naked and self-serving power politics of the “race transformationists”, while acknowledging that “transformation” is also about economic power and the structural inequality built into our free market, elite-dominated, system of government. Race does not tell us everything about who a person is, what he or she might think or how he or she will act, but how and where one fits into the system will tell one much about the life chances of that person. And, of course, given our history most of the people at the bottom are poor and black.
According to this view, the system as a whole needs to be transformed. While this requires a jettisoning of the patriarchal, sexist and homophobic values so deeply entrenched in our society, it also requires a fundamental change in the way we are governed and our society is structured. The system that rewards (black and white) insiders in government and in private business (where CEO’s and senior managers block pay raises for their workers while raking in obscene salaries and bonuses) help to create and keep in check an underclass and fundamentally retards the life chances of those who are not lucky enough to have been born in privilege or to have acquired the trappings of wealth through political connections and old-boys networks.
In this system, many South Africans – no matter how talented, intelligent or even wise – will never get the opportunity to study law, let alone open a practice at the bar and get appointed to the High Court.
“Transformation”, for this group, will only be meaningful if it addresses the fundamental unfairness of the system which irrevocably and tragically precludes a poor, black, rural girl-child (to use one example) from accessing the same life chances as the children of Tokyo Sexwale, Zwelenzima Vavi, one of the Oppenheimer clan or Judge President John Hlophe. Whether the law, the Constitution and the judiciary (regardless of its racial or gender composition) is a stumbling block to this third kind of “transformation” – well – I am still making up my mind about that.
What do YOU talk about when you talk about “transformation”.BACK TO TOP