Chief Justice Mogoeng Mogoeng during the court examination by aggrieved ANC members at the Constitutional court, the case has been postponed until tomorrow. 

054 20-11-2012 Chief Justice Mogoeng Mogoeng during the court examination by aggrieved ANC members at the Constitutional court, the case has been postponed until tomorrow. Picture: TIRO RAMATLHATSE
Ziyad Motala
Ziyad Motala

Chief Justice Mogoeng Mogoeng, in a speech at a meeting of Advocates for Transformation, critiqued those who claim the Judicial Service Commission(JSC) is controlled by politicians.

He criticised unnamed NGOs and individuals, who he asserted are waging a war against transformation and being more interested in the advancement of white males.

The chief justice referenced the briefing patterns that favour white males. He asked why this is not a matter of concern to those critiquing the JSC. His speech has earned the wrath of a sector of society.

The comedian Stephen Colbert, commenting on the behaviour of right-wing ideologues, came up with the word “truthiness”, which the American Dialect Society defines as “the quality of stating concepts or facts one wishes or believes to be true, rather than concepts or facts known to be true”.

The right-wing ideologues, if they do not like the facts, knit together their own yarn. Self-interests inform their thinking. There’s a pathology unique to this group. They repeatedly misstate the law and distort the facts on any number of issues, such as judicial appointments, the nature of the legal profession and the judicial function. Their latest ire is directed at Mogoeng’s speech.

Some from this group have questioned the chief justice’s objectivity. Many of those screaming were either lapdogs of apartheid or silent beneficiaries.

If a sitting or a retired judge articulates a position consistent with this group’s world view, their views are lauded, relayed and amplified by an elite chattering group aided by an echo chamber, comprising the established professional societies, a large section of the media, certain academics and NGOs.

If the position is not consistent with the elite’s partisan agenda, they glibly resort to paranoid hyperbole and melodramatic statements including charges of impropriety. Charges of impropriety are an attempt to impose the losing faction’s agenda.

The chief justice’s scandal was to speak the truth. Briefing patterns overwhelmingly favour white male advocates. Nineteen years into our democracy, the most prominent black advocates do not receive a single brief from white attorneys. The echo chamber have barely raised a voice against these abnormalities. Instead of reporting paranoia, how about some academic rigour, research and commentary on these stark facts?

We witnessed epic battles where elites from the established professional associations have attempted to foist certain judicial candidates on the JSC. When those candidates were not selected, the JSC is accused of discriminating against white males, even though the facts resoundingly belie that.

The Centre for Constitutional Rights, among others, toots the horn that passing over of white males for judicial positions, constitutes disregard of merit and is racist in nature.

They, among others, frame their arguments in ways which might appear noble and altruistic. They are resoundingly wrong in their central premise, which does not pass the laugh test or the Pinocchio test. Merit and transformation are not mutually exclusive.

They need to explain why is it not racist and misogynist for professional societies to maintain an institutional practice, which if one can analogise to a game of poker, continues to dish out four aces to certain white males because of their race, class and gender, as the Bar does. Are these white males who were given four aces better poker players than others who were not favoured, because they were black or female?

These chattering groups labour under a debilitating disease, namely a disdain for reality. On display is a primal instinct, self-preservation, anti-transformation, protection of cronyism and white male privilege.

The elites would like to leave the practices of the largely white male legal profession, particularly the Bar, intact. They want judges to be selected from the ranks of senior advocates as validated by them.

If the problem in the legal profession is framed in terms of lack of competition and access to justice, mainstream democratic practice informs us if a restricted monopoly such as the Bar, impacts mobility or service delivery, government is required to intervene and break it up. Government is also required to equalise opportunities and put an end to cronyism.

As is so often the case, a small and ideologically committed group tilts the commentary and is trying to harvest something. If ordinary people are made to believe that the utterances of the chief justice were improper or draconian, some good people would feel a need to protest as a matter of national priority. Alas, some academics such as Marinus Wiechers, a participant in apartheid legislation and causes, have called the chief justice’s reference to groups waging a war against transformation, as akin to hate speech.

The previous oppressors have no qualms in engaging in phony solicitude, or moving the debate from the profound to the absurd. If an academic does not understand a metaphor, such as a war against transformation, or a war against poor education, it’s time to wage a war against academic malpractice.

This carousel of nonsense, often from individuals, with a dubious past, now armed with all the proper clichés, sometimes backed by NGOs with fantastic sounding names, makes one wonder what is happening. The way the elite were accustomed to doing things is being disassembled. Part of their response is a mobilisation and a call to arms, (and for those that chose to be promiscuously daft, it is a figure of speech), to make up for lost ground.

The JSC has not served as an agent of this group. The favourite candidates of the elite are not being selected for the Bench in the numbers they were accustomed to. Their false narratives are desperate acts of self-preservation.

The chief justice urged progressive lawyers to enter the debates. Progressive lawyers need to start scrimmaging to deconstruct and reverse the hegemonic narrative.

If history is to be our guide, do not expect those that have a challenge speaking truthfully to wilt because they have too much to lose. If you take them on, be prepared for more hysteria, delusion, angry missives and gnashing of the teeth.

* Ziyad Motala is professor of law, Howard Law School.

** The views expressed here are not necessarily those of Independent Newspapers.

Sunday Independent