Sunday, August 2, 2009



BY Justice Malala:
Published:Jul 26, 2009

Just because a judge is black does not mean he or she will not deliver a reactionary ruling

THE Democratic Alliance has, over the past few weeks, protested about President Jacob Zuma’s appointees to the Judicial Service Commission. The latest additions to the JSC are Black Lawyers’ Association president Andiswa Ndoni and advocates Ishmael Semenya, Dumisa Ntsebeza and Vas Soni.

DA leader Helen Zille says the appointment of the four is “part of an ANC strategy to achieve a majority of executive-minded, ANC-friendly commissioners ahead of upcoming interviews for new Constitutional Court judges”.

She underlined her statement by pointing out that the new members of the JSC “have been appointed to replace, among others, renowned human rights lawyer George Bizos”.

That last sentence makes nonsense of Zille’s argument. As ANC secretary-general Gwede Mantashe said, none of the new additions to the JSC can in any way be said to be more ANC-friendly than Bizos.

The reality is that something far more insidious is happening at the JSC and in South Africa. 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.

Simply put, Bizos is the kind of individual who, in my view, upholds the highest and most noble values of our Constitution. We need more like him on the JSC and on the bench. Whiteness does not exclude one from being progressive. I would rather have someone like him, as a judge, presiding over a rape case than have a black candidate who holds the view that a woman wearing a short skirt is “asking for it”.

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.

An example of this kind of madness is advocate Vas Soni, who was appointed to the JSC at the same time as Ntsebeza this month. Soni is a man to whom freedom of the press — and certainly the open society upon which our Constitution is founded — is entirely meaningless.

His judgment gagging the Mail & Guardian newspaper in 2005 and protecting the ANC front company Imvume (this company diverted R11-million of taxpayer funds to the ruling party from state entity PetroSA) was one of the most reactionary, backward rulings yet handed down by a court in the new South Africa. Because he is black, however, he finds himself on the JSC as part of government’s “transformation” drive.

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.

True transformation can only come about when people such as Basic Education Minister Angie Motshekga stop buying inappropriately lavish cars and actually get the school system working. Then we would have a surfeit of black and white candidates from whom to choose . We would then choose on the basis of the calibre of these candidates, not the colour of their skin.

Until this government realises just how misguided its transformation initiatives are without real work on the ground, we will continue to have apartheid-era prosecutors becoming our judges, or reactionary and sexist advocates sitting in judgment on rape cases.

It makes transformation a sham. It demeans and dehumanises us all, black and white.