When ‘merit’ means ‘racism’

2013-08-12 10:00

Attack on chief justice lays bare the racism that still dominates SA’s legal profession

Advocate Paul Hoffman, SC, has castigated Chief Justice Mogoeng Mogoeng for his criticism of certain groups for resisting transformation and being more interested in the advancement of white males.

Hoffman also criticised the chief justice for complaining about briefing patterns that favour white males. Hoffman labelled Mogoeng’s remarks racist and sexist. Hoffman’s latest stunt is to seek impeachment proceedings against the chief justice.

A hallmark of our reality is some people are addicted to the manipulation and distortion of information, unburdened by the confines of principle. They do so in the name of the Constitution, but work against its ethos.

There is a strong body of literature called Critical Race Theory (CRT) that looks into the legal system in the US and its racial and power tilt, which contributes to the oppression of certain groups.

CRT argues one has to confront the dominant societal and institutional forces that, on the one hand, profess the goal of dismantling racial discrimination, while in reality fighting to maintain the structures of racism.

Based on historical analysis, CRT demonstrates that race, ethnicity and other identifying characteristics of marginalised “out groups” at times are central to the operation of the legal system.

Social and institutional practices are linked to earlier periods. It’s not just adjustments within the established hierarchies that are necessary.

Instead, there is a need to challenge the racial tilt of the hierarchy itself, which affirmatively contributes to the subordination of certain groups.

Hoffman wants the JSC to consider merit from the perspective of the white male elite who control and excel in the legal profession.

If he is to be believed, apartheid and racism had nothing to do with the power tilt and subordination of blacks and women in the legal profession.

According to his world-view, white males rose to the top because they were smarter and hard-working. In his view, the legal profession in South Africa is not based on a colonial model infused with racism.

Rather, it represents an equitable meritocracy, where the most qualified and deserving succeeded. Moreover, the historical practices of the past have no consequences for our reality in the present.

Hoffman finds the bifurcated model of the legal profession – particularly the Bar, despite operating under opaque rules and largely controlled by white males – rational, even though the majority of the world would characterise it as elitist, antiquated and nuts.

The shouting and false narratives emerge from a guild that has a racial and gender tilt. This cohort would like to maintain the current elite structure of the profession, even though it provides inequality in opportunities and outcomes, ignoring the intersecting forms of subordination that result from the current structures.

When we talk about historical patterns, Hoffman should identify the instances in which he represented victims fighting against apartheid.

How many times in his career did he employ a black junior? In his legal career, how many times did he take on a female junior and how many times a black pupil?

There are some who say the old oppressors have returned. If truth be told, the racism never left.

With respect to the chief justice’s criticism of briefing patterns, Hoffman asserted that the briefing patterns would continue so long as graduates are not “fully functionally literate”.

Hoffman railed against what he calls “transformation entitlement” and asserted that success in the profession “involves study, arduous preparation and a lot of hard work”.

One might think Hoffman was drawing lessons from Mein Kampf. Is every black advocate, even those who are members of the established Bar, with the status of SC, “functionally illiterate” and not “hard- working”?

The most prominent black advocates hardly receive a single brief from white attorneys and, by extension, from big business. Retired Constitutional Court Judge Zak Yacoob received only one brief from a white attorney in his entire career.

Was it because he was “functionally illiterate” or not “hard-working”? The social constructs and stereotypes of apartheid of the “lazy” and “stupid” black are on full display. The spirit of Verwoerd is well and alive in inflammatory racist rhetoric that is beyond contempt.

What Hoffman and his guild are claiming is elite entitlement, and for the Judicial Service Commission (JSC) to be an agent of their agenda.

Merit must be viewed through the prism of their guild. Nothing is going to relieve their distress short of getting their own on to the Bench. But to expect the JSC to do their bidding is naive.

Hoffman critiques Mogoeng’s values. In truth, Hoffman represents a conservative ideologue who pretends to be insightful. He has made a profession of sounding pious. He provides a gauzy understanding of the Constitution. But unfortunately for him, our Constitutional Court embraces transformation and the need to correct the legacies of racism.

His faction views the JSC’s performance and the various bills percolating within Parliament through the lens of their own expectations. If they are able to appoint judges who share their values, they can arrest transformation. The anodyne for them is to get their way even if it means a constitutional amendment that changes the composition of the JSC.

A black graduate who studies by candlelight in an informal settlement, travels great distances and works to pay her fees might receive a B in her law examination. A white male who has the benefit of a mentor, no financial constraints, and who receives extra tuition and practical lessons from an established network may receive an A. Hoffman would play down the history and context, and disparage the selection of the black woman over the white male as “transformation entitlement” and rewarding “mediocrity”.

Apart from the specific clauses that speak to the selection of judges, our Constitution allows for legislative and other measures to correct against the discrimination of the past.

Hoffman and his supporters are urged to consult international law pronouncements on the obligation to adopt corrective action, which, under our Constitution, we are bound to consider. This will not be found in the edicts of Verwoerd.

We all would have been better off if judges Kriegler and Harms, who have been critical of the JSC, or Hoffman displayed the same moral authority more than two decades ago. This cohort was wrong in the past. Some are prone to spew sulphur, and vacillate between hysteria and delusion, which they invest with the sanctity of dogma.

»?Motala is a professor of law at Howard University School of Law in the USA

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