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
28 September 2011

Will the DA stick to its stated principles?

Members of the Democratic Alliance (DA) caucus are facing an interesting choice when they decide whether to reaffirm Athol Trollip as its parliamentary leader or whether to throw their weight behind Lindiwe Mazibuko, who has announced that she is challenging Trollip for the position of parliamentary leader. An incumbent (who happens to be a white male) is facing off against a young challenger (who happens to be black and a woman).

The political editor of Beeld, Jan-Jan Joubert, has argued that for the DA to be true to its values, the caucus members should not take into account the fact that Mazibuko is a black woman and that Trollip is a white male. Elsewhere Joubert wrote that Trollip’s performance has been solid rather than spectacular, and certainly not on par with that of his predecessors, Sandra Botha and Tony Leon, but he has not indicated whether he believes Trollip or Mazibuko would be a better choice.

On this issue I believe that Joubert is dead wrong. This is why.

In discussions on talk radio many DA supporters have indicated that they would support Mazibuko because the DA “needs a black face in its leadership” or — less crudely — because of the fact that voters need to be able to identify with the leaders of the party it would vote for and because the DA needs to attract more black voters to break out of its Western Cape Zillestan.

Personally, I suspect that the DA would have to do much more than merely elect a black parliamentary leader to convince the majority of us South Africans that it is a credible alternative to the ANC. While some DA MPs and some of its leaders are hardworking and sincere, the tone which some of the DA representatives employ when they engage with important issues of the day still alienates many of us. The fact that the party also still far too often is seen as focusing its attention, at best, on the concerns of upper-middle class voters and, at worst, on the concerns of those white supporters who are extremely reactionary and in cases downright racist, rather than on the concerns of the majority of South Africans, leaves many of us with the uneasy feeling that the DA is essentially a party of white privilege and prejudice.

During the election campaign Helen Zille, Patricia de Lille and Lindiwe Mazibuko tirelessly tried to address this very debilitating perception. Premier Zille sang and danced and appeared at DA rallies held in many townships; and at the last election rally held by the DA before the election Zille threw in more than a smattering of Xhosa into her speech to remind us that the DA was supposedly for all of us.

But the DA faces a difficult problem: as it attempts to appeal to more than the narrow interests of the white electorate who has voted for the party in the past, it may well alienate some members of that very white electorate whose support it needs to retain in order to remain a viable party. Hence, since the election one has not heard Helen Zille speaking any Xhosa and when Dene Smuts issued a rather level-headed and sober assessment of the hate speech judgment of Judge Colin Lamont, many DA supporters were incensed by her analysis because it was mildly critical of the judgment, prompting Helen Zille to issue a clarifying statement.

Nevertheless, in my humble and completely unsolicited opinion, the election of Lindiwe Mazibuko as parliamentary leader of the DA would constitute an important (but not decisive) step towards rehabilitating the DA and towards positioning it as a credible political party in the South African landscape. In fact, not electing Mazibuko would undo some of the good work that Zille has undertaken during her term as leader, as it would send a signal that the DA is fundamentally a racist party who champions white mediocrity over black talent. This is so because its caucus would then have demonstrated that it had once again chosen to support a less than inspiring white man over an, admittedly, less experienced but obviously highly talented rising star who happens to be female and black.

In short, if the DA caucus members vote for Trollip because he is white, the party is doomed to remain an opposition party for decades to come (not that voting for Mazibuko will magically turn the majority of voters away from the ANC and towards the DA).

But does it mean – as Joubert seems to argue – that if the caucus votes for Mazibuko, at least in part, because she is a black woman, that the party is not being true to its principles and policies? Well, if one takes the actual policies of the party seriously (something that some of us admittedly find difficult to do), I think the only option for the DA caucus would be to vote for Mazibuko. If we assume that it was not mere window-dressing by the DA to elect Mazibuko as national spokesperson for the party and hence if we accept that she is a competent and credible politician, the DA’s own policy on corrective measures demands that she, rather than Trollip, should be elected as parliamentary leader.

Two weeks ago a DA MP sent me the DA’s policy on corrective measures to try and convince me that the DA does believe in racial redress of some sort. I quote the most salient aspect of that policy below:

[T]he DA believe in equitable programmes of admission, recruitment and appointment in all spheres. Equity means fairness. It means no-one may be excluded from competing for places on the basis of their immutable characteristics, except where differentiation is just and equitable: a near-sighted person cannot be expected to be trained as a pilot. But in order to advance the goal of equality and the reflection of the full diversity of our society in terms of race, ethnicity, sex, belief, culture, and able-bodiedness, underrepresented categories should enjoy “plus points” or favourable consideration when they are as well qualified for appointment as the next man or woman; or when they show comparable promise. To pretend that qualifications on paper, in examinations, in Curricula Vitae or on job performance scorecards  are the only appropriate or conventional criteria for eligibility for admission, appointment, selection, promotion and the like in any sphere of activity can potentially be as mechanical as demographic determinism.

This policy, authored by Dene Smuts and adopted by the DA Federal Council in 2005, thus embraces a mild form of race based corrective action. It explicitly endorses measures that would give weight to the race of a person when considering whether that person should be appointed, elected or promoted.

In a case like the one under discussion, where one candidate is less than brilliant (but happens to be white and male) and the other is black woman who is a rising star who might conceivable be said to show the promise of a good leader, the DA’s own policy says that the latter candidate must be given some “plus points” because she is black and a woman, and hence that she should get the nod above the white male candidate.

If the majority of the caucus fail to elect Mazibuko as parliamentary leader this might well mean that she has risen inside the party not because of her qualities as a politician and a leader, but merely as window dressings; that she was used to give the DA the veneer of credibility it needs to attract the majority of voters in South Africa.

It would mean either that she does not possess the promise that the DA policy speaks of, or that the majority of DA caucus members do not agree with the policy on corrective measures adopted by the party. Either way, it would make the DA the laughing stock of any mildly well-informed member of the public and would suggest that it is just as (or more) dishonest than the ANC when it comes to sticking to its supposed principles.

I therefore believe that Jan-Jan Joubert is dead wrong on this issue. If the DA wants to demonstrate that it is a party of principle, its caucus can only elect one parliamentary leader — and that is not going to be Athol Trollip. The fact that the tie-break in this case will be the race and/or gender of the candidate squares perfectly with the policies on redress adopted (but seldom spoken about) by the DA.

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