OPINION | Bouwer van Niekerk: Defending Dali - to be critiqued and to criticise

Dali Mpofu.
Dali Mpofu.
Mlungisi Louw

Bouwer van Niekerk, a Johannesburg-based attorney reflects on a statement written by a group of concerned advocates who were  outraged by what they viewed as racist attitudes toward black legal practitioners. He outlines why he thinks there was some irony in their statement.

The right to criticise is one of the cornerstones of our democracy, as it by its very nature linked to the Constitutionally guaranteed rights and freedoms of opinion and expression, including a free press and other media.

The media does not exist simply to give us our dose of the latest news, unvarnished or otherwise. It is also there to opine on what is happening in our world. It is one of the primary tools to assist us in peeking over Plato's cave, to see the wood from the trees, and to keep our public institutions accountable. The importance of its existence can hardly be overstated, and its function in a democratic society hardly needs explaining.

But that does not mean that the media and the editors that lead them cannot be critiqued. In fact, I would argue that part of the media's function is to create a public space for those who criticise it. Editors, however powerful they may be, should never shroud away from either criticising or being criticised; they should embrace both as being a necessary and important part of their jobs. 

READ | Adriaan Basson: Dali Mpofu - a legal nincompoop and scoundrel

This is exactly what happened recently when News24 editor Adriaan Basson criticised both the Judicial Services Commission in general and Advocate Dali Mpofu SC in particular for their handling of the interviews of the four judges who were nominated to fill the vacant position of Chief Justice at the Constitutional Court, and in turn, was criticised by a group of "concerned advocates" who were clearly affronted by his criticism of especially Mpofu.

I do not intend to deal with the merits of Basson's criticism, as that is not the point of this piece, and I have no intention of taking a stand in support of either his views or those of the concerned advocates. Rather, I am herein only concerned with their respective rights to criticise, and my right to express my views on the criticisms. 

The role of the JSC and its members in conducting interviews with the judges nominated for the highest judicial office in the land is profound. The responsibility that goes with the interviewing process need hardly be stressed; it is part of a process that will culminate in the President appointing the new head of the judiciary. The Chief Justice, together with the Speaker of Parliament and the President occupy the highest positions in the land.

Scrutiny required

Because we are a constitutional democracy, the position of the Chief Justice carries additional significance, as (among others) all actions of the powers that be must be measured against the Constitution, and the legitimacy or otherwise of these actions are finally determinable by the Constitutional Court. As the head of this court, the Chief Justice not only wields great power, but is also entrusted with great responsibility. The process of identifying a suitable candidate should, therefore, likewise be conducted with the necessary responsibility, circumspection, and decorum that it deserves. 

Regrettably, the JSC's role in this process at stages fell short of these requirements. What transpired has been extensively documented and need not be repeated herein. The conduct of some of its members, notably Mpofu, has also been widely criticised. Whether all the criticism is justified is not a debate I intend to get involved in. But the complaint of the criticism by the concerned advocates requires scrutiny. 

READ | Opinion: In defence of our brother and colleague Dali Mpofu

To fully appreciate the complaint of the criticism, one must place it into context. The defence of Dali Mpofu was written by a group of advocates that count among them very senior and esteemed members of the legal profession. Some of them are often in the news and appear in some of the biggest and most newsworthy cases in the country. Many (yours faithfully included) look up to (at least to some of) them for juristic leadership, intellectual guidance, and moral direction. Some of them command the respect that they have earned through their achievements in practicing the law. 

It is, therefore, disappointing (but understandable) that the concerned advocates did not, in criticising Basson's piece, deal with the merits of his views or what transpired at the interviews, but rather opted to turn it into a race issue. One would have been forgiven to have expected that this group (that counts among them some seasoned litigators) would have dissected at least some of Basson's arguments, carefully analysed some his conclusions, and pointed out his fallacies. Unfortunately (but again, understandably), they did not do this. Rather, they (very much understandably) expressed their anger at what they perceived to be Basson's arrogance and insensitivity, which is, according to them borne from his and his colonial ancestors' whiteness. This is of course fair comment, and Basson will be well advised to take this criticism on board. 

READ | Mondli Makhanya: In defence of Dali Mpofu - When silks think and sound like vagabonds

But they then go further. The concerned advocates end off by predicting that "attacks … will come our way as a result of this statement" and then call upon numerous "progressive structures" to join them "in defending ourselves against this racist onslaught". This is problematic, as the inference is clear – Basson is a racist, journalists who express similar views are racists, and commentators who differ from the concerned advocates are assisting Basson and his ilk in their racist onslaught and are therefore also racists. But this line of arguing is not only logically fallacious (the fact that I am not your enemy's enemy does not necessarily mean I am your enemy) but is also by its very nature racist. The irony is glaringly obvious – the concerned advocates are (correctly) outraged by what they view as racist attitudes toward black legal practitioners, but then forewarns anyone who may differ from their view that they, too, will be labelled a racist, as such views are part of a racist onslaught.

In writing this, I am acutely aware of the fact that I am a white Afrikaans male and that because of (only) this, I may also be labelled a racist by the concerned advocates. But this brings me to my point. The mere fact that I am white and speak Afrikaans should not (on its own) be a deterrent from expressing my view, even if it differs from my esteemed colleagues. If I utter racist views, I should be held accountable and prosecuted accordingly. But the mere fact that I may differ with the views of the concerned advocates should not automatically make me a racist. Such a conclusion is simply erroneous. (And, for the record, I am not a racist.)

While I obviously respect both my colleagues and their constitutional rights to express their opinions and communicate their disgust, I do not think it fair that in doing so, they can also intimidate people to not express contrary opinions in fear of being labelled a racist – arguably the worst label that can be hung around someone's neck. 

- Bouwer van Niekerk is a Johannesburg-based attorney. 

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READ | Friday Briefing: The next Chief Justice: Who'd want to put on these robes after last week?

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