I want to respond to the article that appeared yesterday, written by James Myburgh, the editor of this site, itself a response to the comments made by Margaret Marshall, the Chief Justice of the Massachusetts Supreme Judicial Court (see article).
The article appeared under the slightly odd headline, "Why do Westerners get it so wrong?" I say an "odd" headline because it seemed to imply (within the first few paragraphs) that South Africa was some kind of mysterious and occult environment, such as Russia in the 1930s, which could be baffling to the likes of Marshall. I had a momentary vision of her, wearing a fur hat and floundering in a snow drift outside Wits University. Yet she was born and lived here, until her early twenties.
Myburgh suggested that Marshall had gotten it wrong in the Bram Fischer Memorial Lecture that she delivered in November, especially her comment on "diversity". "In its 15 years of constitutional democracy," Marshall apparently said, "South Africa has made remarkable strides inf creating a diverse judiciary of distinction. You have done so on a far faster, and more impressive scale than we have.... The diversity of your courts is, and should be, great cause for pride and celebration."
Not so, said Myburgh.
In fact, the ANC had taken control of the process of appointments to the bench in 1998, with its "overriding concern" being "the attainment of a judiciary which reflects the composition of the total population," i.e. a predominantly black judiciary. There has been a renewed emphasis on this objective under the Zuma presidency, with the result that "a number of racially driven individuals [had and have been appointed] to the Judicial Service Commission, who can be relied upon to implement it"
The problem with this was not only that there are not necessarily sufficient numbers of skilled and/or experienced enough senior black law people, but more importantly that the race, rather than the merit and expertise of the individual applicants, has become the main issue.
Moreover, "[m]inority applicants who dared apply for appointment have, under the Zuma presidency, been subjected to a modern variant of ‘trial by drowning'. They are asked by the racial psychopaths [sic] on the JSC if they support the ideal of ‘demographic representivity.' If they say no, they are excluded from consideration for having opposed ‘transformation'. If they say ‘yes' they self-exclude themselves, as their appointment would quite obviously obstruct the attainment of this goal."
This state of affairs is obviously not great cause for pride and celebration. Marshall, Myburgh wrote, "should have taken some time to properly acquaint herself with what has been happening in South Africa. As it is, her comments, such as they were, bore no relation to the actual lived reality. Moreover, they can be read as an endorsement of the agenda of the thugs and racists [sic] currently in charge."
2.
Do I agree with what Myburgh had to say? If readers will bear with me, I am going to hold on to my answer for a minute or four - and instead focus a little on what I have omitted from the above account.
Robert Louis Stevenson famously wrote in Virginibus Puerisque that "to travel hopefully is a better thing than to arrive ..." My grandmother Ada Rom Awerbuch, a Jewish Buddhist, said: "Be aware of your body; be aware of your perceptions; but keep in mind that not every physical sensation is a symptom of a terminal illness."
I mention these sayings because I think it is also important how we travel - which means we use to reach our destination, which means we use to justify our ends, including in arguments and discussions. And I also think it important to keep things in perspective. Not every pain in the body politic is the sign of a terminal illness.
So. Myburgh kicks off by invoking one of the great bullshit tomes of all time: the Webb's supremely moronic whitewash of the USSR and of inter alios Stalin. He goes on to discuss George Orwell's essay on the huge stupidity of many intellectuals when it came to Soviet Russia.
Myburgh then says: "The God of Soviet Communism failed long ago. But there is an enduring tendency for Western intellectuals to identify strongly with foreign causes they do not really understand, and write mindlessly about them". He thus also invokes the book generally connected with Arthur Koestler, The God That Failed, and the whole saga of the "war" - and sometimes it was real war and murder - waged between Soviet supporters and fellow travellers, on the one hand, and those who had seen the light, on the other. And those familiar with the history will know just how bitter and heart-breaking a business it was, especially among those who had tied themselves to the Marxist dream.
At this point - at the risk of being accused of being self-regarding etc - let me interpolate that my paternal and maternal grandparents came to South Africa at the end of the 19th century, from Latvia and Lithuania respectively. Of the large extended family of Gordins, Garnitzes, Awerbuchs, and Roms who remained in Eastern Europe until 1939 and afterwards - there would have been a few hundred of them, maybe more - 80 percent were murdered by the SS special action groups and their little helpers. Mostly they were gunned down at the edge of mass graves close to the small villages in which they had lived. The surviving 20 percent, a few of whom joined the party, were detached from their lives during the ensuing years by Stalin's thugs. I think literally one relative was left in the USSR by the 1960s. A minor hero of the Red Army 1941-45, he ended up washing dishes in Moscow: even in the 1960s, Jews struggled to get jobs in Russia. Let me add, finally, that in 1945 my father was involved (as a medical person) in the liberation of the death and concentration camps in Europe.
I mention this just by way of noting that the horrors of totalitarianism, both Nazi and Stalinist, as well as thugs and racial psychopaths, have, let us say, crossed my radar, and not just from between the covers of books.
Okay, as I was saying, before I rudely interrupted, in his piece Myburgh began by skilfully conjuring up for us the horrible spectres of the Soviet Union and Stalin and of totalitarianism in general.
But the South Africa of today is neither Hitler's Germany nor Stalin's Russia - or anything like them, and nor is the judiciary. Why then invoke the horrors of totalitarianism, etc? Why the Webbs, Orwell and Koestler? We do not live in a Gulag Archipelago nor is the country anywhere near one.
(Though, unbeknown to most people, there is a sort of Gulag Archipelago that exists in our society. I am referring to the prison system and especially to the thousands of awaiting trial prisoners shuffling back and forth inside that system, like inmates in a hell conceived by Dante. But this is another story and is not the rotten fruit of a political or racist approach. It is the fruit of pure incompetence and ineptitude.)
Myburgh moved on, saying that Marshall's comments about our judiciary were contemptuous because our judiciary has been brought into disrepute by judges Nkola Motata and John Hlophe.
I concede that Hlophe was (is?) clearly a seriously dangerous dingbat who has played a much larger destructive role than he ever should have been allowed to do. But this has been the fault not of the system, the beloved country in general, or the ANC, but of selected spineless creatures on the JSC. They have been both white and black people. In their defensiveness over their black brother, the black ones threw out their intellectual integrity and common sense; in their unwillingness to hurt their black brothers and their zealousness to be Politically Correct, the white ones repeatedly let Hlophe off the hook.
There was also a balls-up on the part of Chief Justice Pius Langa. The CJ should have called Hlophe privately and told him to mind his Ps and Qs and not to darken the door of the Constitutional Court again. Finish and klaar. But he didn't; the Concourt that should talk through its judgments, not through press releases, issued a press release.
As for Motata, well, he had too much to drink, that's all. It is something of a South African sport and some of its leading proponents are to be found among the legal fraternity. Motata's real crime was not that he had a drink or seven but that he did not take his punishment like an adult human being. Embarrassingly, he squirmed and turned and wasted everyone's time and money. But, hey, there but for the grace of the big fellow or the big lady, go you and I. Being a grown-up would have meant saying goodbye to the robes, the status, the Jaguar, etc. Not easy, especially if all you have done was swallowed five drinks too many.
But two swallows (of a different sort) do not make a winter; and can Hlophe and Motata, these two beauts, fairly be said to have brought the whole South African judiciary into disrepute? I don't think so.
Myburgh then goes on to deal with the ANC's overriding concern at getting more black faces on to the bench. Myburgh is, I think, correct to emphasise what happened. But I think it deeply unfair - and inaccurate - to talk about racial psychopathy.
I believe that what happened was that there was growing anxiety among members of the ruling party about who was wielding the "power" in the judiciary.
This was because unexpectedly (after the late 1990s, say) corruption, law, the legal process, and "justice" started playing a larger and, as I say, unexpected role in our society.
We had inter alia the brouhaha surrounding the arms deal and the man who would be king - and is now king - was charged with corruption. Law and courts and lawyers became the flavour of the day. So "wait a minute" cried the fellows at Luthuli House to one another, "it's all very well us starting to get a share in the economy, but we're going to get shtupped in the courts if we are not careful. In fact the judiciary is already telling us that we can't have the presidential candidate that we want."
But I say again: this is not about racial psychopathy. Nor, I think, can it be said to be about "extreme racism". Then to invoke - which is what Myburgh does next - the texts of 19th century German anti-Semitism is simply inappropriate. There might be a ghost of specious logic in Myburgh's argument, but the shenanigans in the JSC and in the justice department are not leading to gas chambers or mass killings.
And, while there are some people on the JSC (if that is the group to whom Myburgh was referring in his last sentence - it is not clear) who clearly have a crass racist agenda, to refer wholesale to those "in charge" as "racists and thugs" is, again, neither fair nor accurate.
3.
I return to my question: Do I agree with Myburgh's basic or essential thesis?
The answer is yes, I do. I do think that a race-obsessed JSC has harmed the integrity of the judiciary and the administration of justice and that the manner in which the JSC is executing its mandate constitutes a threat to the independence of the judiciary. I also think - to put it mildly - that Marshall should have taken some time to acquaint herself properly with what has been happening in South Africa. (Ach, she was just being a goody two-shoes. You do that when you're a visitor to another country.)
Why then my song and dance above? The reason is that I do think that what is brought into public debate - and there's not a lot of it about these days, other than on Politicsweb - is important.
This being the case, I think that harking back to the bogeymen of European totalitarianism is uncalled for. I think that manner of reasoning is inaccurate, over-stated, alarmist, and above all misses the point.
In my view, contrary to the views of many commentators on this site, there is not a plot against we, the people, by some nasty folk in the ANC. There is not a bunch of malevolent people out there, in the government, ANC, or JSC - though there are some of course.
Rather, in many areas, especially in the justice (and health and education and ?) sectors, our leaders of all ranks - and they are ours, for better and worse - are struggling badly. They might smile and strut a great deal and drive around in fancy cars. But they are for the most part incompetent, inept, surprisingly venal, and under siege - putting back the wheels is proving to be more difficult than anyone envisaged.
[Paul Trewhela's response to the same article can be found here - Ed.]
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