Demographic representivity's nasty history

JOHANNESBURG - Earlier this week I wrote an article critiquing recent remarks made by Margaret Marshall, the Chief Justice of the Supreme Court of Massachusetts, on the state of South Africa's judiciary. In a lecture in Johannesburg Marshall stated that, "South Africa has made remarkable strides in 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."

Given that the ANC had, in reality, ruthlessly elevated the pursuit of racial targets in judicial appointments over all other considerations, I thought this comment mindless. It was dangerous too, given that an Africanist cabal has recently taken control of judicial appointments.

This article has now provoked critical responses from Jeremy Gordin, Professor Pierre de Vos and others. De Vos reacted with outrage to one paragraph in particular. I wrote:

"One of the founding texts of modern German anti-Semitism - Adolf Stoecker's 1879 pamphlet ‘What we Demand of Modern Jewry' - called for the ‘limitation of appointments of Jewish judges in proportion to the size of the population.' Should South Africa really be proud that, a hundred and thirty years later, the ANC has adopted the same limitation, when it comes to the appointment of white (including Jewish) judges in South Africa?"

De Vos accused me of "equating Nazi Germany with present day South Africa", before launching into an impassioned defence of racial discrimination in judicial appointments. Before I answer his criticism, let me be very clear about what I am arguing against. By any reasonable yardstick the judiciary is already ‘broadly representative' of the race and gender composition of the population. Only 44,1% of judges are still white, even though that minority constitutes about 75% of the legal profession.

When Jacob Zuma, Jeff Radebe or Dumisa Ntsebeza refer to ‘demographic' representivity they are signalling their determination to bring the number of whites on the bench down to that minority's proportion of the total population (9%). The addition of the gender dimension signals, in turn, the desire to limit the number of white male judges on the bench to less than 5% (or about 9 positions out of 202.)

So what I am arguing against, and Pierre de Vos is apparently arguing for, is the moral permissibility of racial discrimination when directed towards this ultimate goal. The question is: is this principle racist? And can parallels be drawn between it and European anti-Semitism of the inter-war era?

Gordin raises a pre-emptive moral objection to any such comparison. He does not argue that the analogy I draw between the demands of Jeff Radebe today, and those of Stoecker in 1879, is inaccurate, only that it is ‘inappropriate' (given what later happened under the Nazis).

I do think analogies with anti-Semitism should not be made carelessly. And I respect where Gordin is coming from. But, he must be careful about where his argument could end up going to. Invoking the Holocaust, in this way, leads to a rather strange place. It works, in effect, to shield modern racialists from moral opprobrium and meaningful intellectual scrutiny; and allows them to replicate (certain) policies from the pre-1939 era, without attracting any stigma.

This taboo has had deeply perverse consequences: One of the reasons why one racial minority after another has been dispossessed in post-colonial Africa - and I'm not referring to South Africa here - is because of the reluctance by Western intellectuals to explore the obvious parallels between ‘Aryanisation' and ‘Africanisation'.

There are many very nasty tendencies in human nature. Personally, I believe we should learn from history what their manifestations are, and how to recognise them. If and when they show themselves we should try to knock them on the head as hard as possible.

The truth is the principle of ‘demographic representivity' has a deeply noxious past. Before De Vos writes any more defences of its legality and why it is a political imperative, he should perhaps take a second look at its history.

On March 29 1933, shortly after its ascent to power and before most Germans had been converted to anti-Semitism, the National Socialist Party of Germany issued a series of instructions to all Party offices and Party organizations for the Anti-Jewish Boycott planned for April 1 1933. Point 1 called for party branches to immediately form Action Committees "for the practical systematic implementation of a boycott of Jewish shops, Jewish goods, Jewish doctors and Jewish lawyers."

Point 9 ordered that: "The Action Committees will immediately organize tens of thousands of mass meetings, reaching down to the smallest village, at which the demand will be raised for the introduction of a limited quota for the employment of Jews in all professions, according to their proportion in the German population. In order to increase the impact of this step the demand should be limited to three areas for the time being: a) attendance at German high schools and universities; b) the medical profession; c) the legal profession."

In his memoirs, written in 1939, the anti-Nazi dissident Sebastian Haffner noted that the violence of the boycott, and the crude propaganda directed against the Jews, did not appeal to ordinary Germans. This did not mean it was without effect, however. The depressing aspect of this initial declaration of intent, he wrote, "was that it triggered off a flood of argument and discussions all over Germany, not about anti-Semitism but about the ‘Jewish Question.'"

It soon became customary, he wrote, "to count it against the Jews if they had a respectable or intellectually valuable profession. This was treated as a crime or, at the very least, a lack of tact. The defenders of the Jews were frowningly told that it was reprehensible of the Jews to have such-and-such a percentage of doctors, lawyers, journalists, etc. Indeed, per cent calculations were a popular ingredient of the ‘Jewish Question.'"

On April 25 1933 the NSDAP gave legal effect to the numerus clausus, demanded on the first of the month, through the Law against the Over Crowding of German Schools and Institutions of Higher Learning. This stated that "in admissions, care is to be taken that the number of Reich Germans...of non-Aryan descent [i.e. Jews], out of the total attending each school and each faculty, does not exceed the proportion of the non-Aryans [Jews] within the Reich population." The ratio for admissions was set at 1,5%. And a quota of 5% was imposed on Jewish attendance at any single university or school.

The Deutsche Allgemeine Zeitung of April 27 1933 described the rationale behind the act as follows: "Allowing the presence of too high a percentage of people of foreign origin [Jews] in relation to their percentage of the population could be interpreted as an acceptance of the superiority of other races, something decidedly to be rejected."

While much Western public opinion reacted with abhorrence at the brutish and violent methods of the Nazis, their identification of the ‘Jewish problem' enjoyed wide currency. In 1937 Hendrik Verwoerd called for the introduction of legislation in South Africa to "gradually but purposefully ensure that each white section of the population should, as far as practicable, enjoy a share of each of the major occupations, according to its proportion of the white population."

Those on the Allied side were not immune to this sort of reasoning either. At the Casablanca conference of January 1943 US President Franklin D. Roosevelt proposed that, in the newly liberated territories, "the number of Jews engaged in the practice of the professions (law, medicine, etc.) should be definitely limited to the percentage that the Jewish population in North Africa bears to the whole of the North African population."

The aim of Roosevelt's plan was, apparently, to "further eliminate the specific and understandable complaints which the Germans bore towards the Jews in Germany, namely, that while they represented a small part of the population over fifty percent of the lawyers, doctors, school teachers, college professors, etc. in Germany were Jews."

I could carry on citing examples, but hopefully these will suffice. There are good and bad reasons for relaxing an outright ban on race discrimination, but the pursuit of institutional race proportionality must rank as one of the worst.

I do not know whether the principle of ‘demographic representivity', in the judiciary or elsewhere, is constitutional or not. What I do know is that it is a morally abhorrent principle, which drags behind it an odious history. What is unsettling and depressing - to use Haffner's words - is that no moral stigma is currently attached to its invocation.

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Reds down the road No fine, but the rub is in the 'way forward', or lack thereof, and this is what you have avoided. Representivity is a US idea that entered ANC thinking after 1990, via the fast-tracked cohort of mostly non-ANC black South Africans who had been . .more through US schools in the 1980s. BEE is a wholly US jargon. There is an empirical problem, the legacy of apartheid. The means of escape from the legacy is what is being argued, or partly argued. One assumption that is part of BEE is that the existing institutions are good enough, or would be if they were not racially unrepresentative. This is a reversal for those in the ANC, including but not limited to SACP members, who would critique the entire set-up. The dilemma that your argument arrives at, James, is that to go further, you must either make an argument for a non-racial continuation of the status quo, or else invite an open season of criticism of South African institutions that is rooted in class struggle. I think this is why you have taken care not to look too closely at who the partisans of BEE really are, and who their real opponents would be. The liberals have made a typical liberal 'fudge' over this. They take care to keep good hold of the BEE nurse, for fear of meeting something worse (i.e. reds). . .less by Domza on December 04 2009, 05:07 Find this comment inappropriate? Report it

Huh!!? I think racial demographic representation in our courts, was only a matter of time. Its been practise in sport , but not to this extend though. One can probably give numerous references to certain aspects of history where this doesn't work, but one can . .more all so give one's of where it did. Actually it doesn't matter. In the long run the white people will learn to adjust, as did the jews, bar being robbed of their wealth and living in slumps for a time, but they did recover. Therefore, fighting against this type of discimination, and that is exactly what this is, borderline medevil racism, should continue. To my mind this doesn't warrent even a debate, but none the less it is more prudent, and smarter to debate and talk out issues of this nature. Irrational thought, for what the ANC are known for, will only server to make this worse. This is a learning curve for the ANC, and a steep one at that, and like Germany you mentioned at some point there will be an exponential decay as well, since our entire world is periodic in nature... ;) If the ANC continues on in this fashion, sure it might be better, but also appointing/deploying members of their party in to keys position will most likely back fire in their face. People have their own agendas and in fight will occur, as it has already, for power.... its human nature . .less by unknown on December 04 2009, 05:12 Find this comment inappropriate? Report it

Wisdom 20/20 hindsight brings from longevity Dec 2007: ANCYL bums to Hitler Jugen tactics DE JA VU. A lonely alarmist, I saw the future now gaining momentum. I warned "Malema is dangerous." The iron fist of Facism & Stalinism &. HISTORY is repeated ! by old, female on December 04 2009, 06:00 Find this comment inappropriate? Report it

‘Aryanisation' and ‘Africanisation'. A well reasoned and thought provoking article. It seems to me that social engineers are a breed of their own used by politicians for political ends. Given the problem of farm murders and inter-racial crime related murders the principle of demographic . .more representation, racial discrimination and racial targeting needs to be addressed urgently.Now if these scummy politicians could leave us all alone to determin our own present and future within the confines of an effective and common-sense legal and law enforcement system we would all start moving forward again. Thank you James Myburg an excellent article. . .less by Wendy on December 04 2009, 06:44 Find this comment inappropriate? Report it

Isn't this the same Prof. Pierre de Vos... ...who enjoyed the silent support of every thinking South African when he unequivocally condemned the appointment of Simelane as Director of Public Prosecutions, only to apologise for his viewpoint hours later? Was he not only drilled at that time, but . .more lobotomised, perhaps? It's all very sad. . .less by Alset on December 04 2009, 06:45 Find this comment inappropriate? Report it

s 174(2) in context Lets get a grip here. The appointment of judicial officers in the new SA in essence requires selection of "any appropriately qualified woman or man who is a fit and proper person" according to section 174 (1) of the Constitution. Then comes the . .more qualification, which in the headlong rush to transform the judiciary has been incorrectly turned into the main criterion: "The need for the judiciary to reflect broadly the racial and gender composition of SA MUST BE CONSIDERED when judicial officers are appointed" says section 174(2). Properly construed, the words in capitals mean, in their context, that once the appropriately qualified fit and proper candidates have been identified, consideration must be given to the demographic factors of race and gender. This is as it should be if the imbalances of the past are going to be replaced by a non-racial non-sexist ethos without compromising excellence. Unfortunately race and gender (to a lesser extent) have been allowed to trump the basic requirements for the job, which is why Cachalia JA has lamented the incompetent "affirmative action chickens" on the Bench coming home to roost. Ask yourself whether you would rather be tried by a competent judge or one chosen to represent your race or gender. Note too the race and gender of the lawyers chosen by e.g. Zuma, Selebi and Shaik. . .less by Paul Hoffman on December 04 2009, 07:27 Find this comment inappropriate? Report it

Where are the black lawyers ? What is stopping any South African from being a lawyer, black or white. Mandela managed to become one way back in the apartheid era. Since then it has become much easier. Of course the ANC's mindless "education later liberation first" slogans . .more didn't really help to assist aspiring lawyers, but then again the ANC have never been that good at making intelligent policy. Blaming apartheid for ruining the chances of any black legal students at that stage is plainly ridiculous. For the 20 years since there have been no apartheid laws and plenty of bursaries to study if you have a black skin. All that is needed is hard work and dedication and if this had happened, we would be awash with black lawyers. Blaming apartheid because not enough black skinned South Africans have not put in the effort to achieve such success does not wash with me. If anything, BEE has discouraged people from putting in the effort - why study for years to get a qualification when you can get rich for very little effort by getting a BEE handout. This whole excuse that Black people need extra assistance because of something that happened 25 to 30 years ago is getting very tired and lame. Get off your arses and stop expecting free handouts and it will be surprising what you can achieve. . .less by Sad Days on December 04 2009, 07:32 Find this comment inappropriate? Report it

Yup, we all recognize we are in a racist fascist dispensation. The sheeps clothing worn is a constution with inherent racist clauses and voting ( see references to affirmative action and similar). It is NOT a constitional democracy in execution or value. RSA is a racist 'demographicracy' (politically correct name . .more for a neo nazi movement complete with youth league) ......but as yet no Kmer Rouge death squads other than the informal economic and actual culling of white farmers. The government of this country with racist borders rather than geographic borders even appears to see the DA not as an opposition party in a democracy but as the government of people outside its racial border. How else does a person see the warlike declarations of Malema and other blacks of the black country. Without the two racial states defined by racial borders, a thinking person would find the practise of low level civil war. No, it is a dispute between a racial state with government and a racilal state without governments referred to as the whites. . .less by Free the Rest on December 04 2009, 07:56 Find this comment inappropriate? Report it

the blackening of the judiciary A well balanced article and raises frightening questions. Judges are being appointed purely because of their race-the blacker the better. As a lawyer it is sad to see so many qualified and competent advocates being deflected from an appointment and scared . .more off by the obsessive racialism of the ANC lackeys. . .less by jacko on December 04 2009, 09:03 Find this comment inappropriate? Report it

ANC - A Racist, Criminal Organistation? The really simple fact is that the ANC has become a racist organisation - and bordering on a criminal one at that. It's a disgrace. by Democrat on December 04 2009, 09:29 Find this comment inappropriate? Report it

Nazi theories 1. Of all Nobel recipients. Jewish names appear 127 times on the list, about 18 percent of the total. This is a group of people who add up to 1/24th of 1 percent of the world's population 2. the 25% of the Indian population with the highest . .more I*'s is greater than the population of the USA 3. In China, over 2,5 million people graduate from university, annually Legislating on demographics is extremely dangerous. It ensures that the cream never rises to the top. It stifles growth. . .less by Realist on December 04 2009, 09:39 Find this comment inappropriate? Report it

Africa pal, jobs for friends and mates who support and vote for you In return you get mega rich from all the corruption through deployment and BEE deals. What new? Malema and co will see SA does the Zim thing in no time at all. The 2010 party will be the last dance and then ruin just like everything esle in Africa. Why? . .more That is how we behave. Why? You are dumb to even ask because you can get so rich in Africa and all it costs is a millions of homeless hungry sick jobless blacks who vote for you anyway. Why worry? Am I missing something? . .less by The Honourable Bob Mugabe on December 04 2009, 10:01 Find this comment inappropriate? Report it

Ultimate Demographic Representivity "Unknown" opines: "Actually it doesn't matter. In the long run the white people will learn to adjust, as did the jews, bar being robbed of their wealth and living in slumps for a time, but they did recover." How do you "recover" when you're dead? 6 . .more million people died then. Only fools and liars will deny that the killing has started here. And don't tell me the vast majority of South Africans are good people, I know that. So were the vast majority of Germans. . .less by Pieter Schoombee on December 04 2009, 12:13 Find this comment inappropriate? Report it

Colour -- Blind Why is it that that lady with the scales always appears to be blindfolded ??? by Bibliophile on December 04 2009, 12:42 Find this comment inappropriate? Report it

Not Quite The Nazis had a policy of not hiring Jewish lawyers or doctors. The ANC High ups have a policy of hiring white doctors or lawyers or engineers whenever they are either sick or caught out being the crooks they are or buying a car. See Jakob, . .more Thabo, Nelson and Julius past historys for details confirming this fact . .less by andrewa on December 04 2009, 13:28 Find this comment inappropriate? Report it

the absurdity of demographic representativity Shall we have to ensure that in the province where Pedi is the language there must be no judges who speak any other language? What happens if one of those judges has to make a decision regarding the hermaphrodyte staus of a litigant? I sense a major . .more problem here because cde julius has informed us that there is no Pedi word for such a person. Actually I suspect the problems are insurmountable and I would certainly strongly suggest that even if the motives of such an absurd practice are as pure as the driven snow the actual practice and implementation thereof will lead us inexorably down the pathway to stalinist pogroms and nazi-type exclusion. Ask any Somali trader in SA what he thinks of "representative demography" as practised by a mob of drink-and-drug crazed savages bearing down upon him with murder in their eyes. . .less by Plutarch on December 04 2009, 13:44 Find this comment inappropriate? Report it

Spot on James In a recent visit to the Imperial War Museum Holocast's section in London one could not escape the fact that the type and wording of propagnda being perpertrated against Jews at that time was identical to that which we have seen from the ANC against . .more whites since 1994. What Pierre De Vos must do is go and visit this museum for himself and see how one could easily remove the word Jew from the propanga and replace it with the word with white. I am afraid that blacks in this country dont realise that they only have one chance to make a sucess of this country. . .less by Mike on December 04 2009, 14:40 Find this comment inappropriate? Report it

@sad days Sad days, Africans will never, ever, let go of apartheid. If they do, they would have nothing left to blame for their incompetence. Look at the USA where they still go on and on and on about slavery, that ended hundreds of years ago. The victim mentality . .more is inherent in them. . .less by James on December 04 2009, 15:29 Find this comment inappropriate? Report it

@ sad days Case in point: Haiti. Oldest black republic in the world - 200 odd years old. Look at how well they are doing... by James on December 04 2009, 15:31 Find this comment inappropriate? Report it

How do e ensure equity it s ell knon that the dispensation under all previous regimes made it ell nigh imp[ossible for people of colour to advance in any field of endeavopur. this did not start ith the nationalist goverment they only perfected it the question is ho do we . .more ensure that e create an equitable system that recognises talents of all citizens of this country. do we blindly assert that no that the opportunities are opnend talented individual ill rise up, maybe some ill but for a child growing in Diepsloot, Kantuzuma, Covimvaba and all uother undeveloped ares kept that way by those earlier in power does this mean this people will forever form the nunderclass of this country?i am not sure if this is sustainanable, it is not only farmers who are dying, i have lost a brother a sister and a friend through beuing murdered. all of them did not own farms they were ordinary residents leaving in the toenships of South Africa how i ish e could adress this matter without raising argument to a level of prejudice.this country has to ensure that we eliminate the unfair unearned disadvantage that the indivgennous inhabitants of this country ere subjected to i had hoped by this time hite people like the author would emphathise with what the ANC IS FACED WITH. Those lawyers who you say are in a bigger number in the chambers here were they hen i had thogwash abo . .less by mototoane Borole on December 04 2009, 20:10 Find this comment inappropriate? Report it

history as proof History has proved that the concept of "demographic representavity" is the the "intellectual" realm of the the political psychopath. by critic on December 05 2009, 06:07 Find this comment inappropriate? Report it

Intelectual Wealth Which country in our Global Villiage can afford to ignore it's intelectual weath. Countires compete to attract people of merit to bolster their economies.. We choose to ignore merit, resulting in a brain drain. My grandchildren. all sraight A students, . .more will not be able to obtain the required university places, due to racial discrimination, so will be educated overseas. We do not want to see them leave the , but they are forced to if they are to achieve their potential. This is repeated many times in our country and we as a nation end up as the losers. Can we afford this ? How can we as nation allow this utter waste of potential? The effect on our future economy is incalcuable. For what? The colour of a person's skin? I thought that we had learned that lesson. The right balance will be achieved in time, given time. We need to maximise our potential not discourage and maybe destroy it. We need competent citizens regardless of their skin colour. . .less by Peter Hartley on December 05 2009, 17:50 Find this comment inappropriate? Report it

Racial focus is holding us back It was a dangerous political strategy and policy to legislate and push for "representivity" based on race. It is a culture that is being inbred into our society and will soon be the norm of society as we are beyond the tipping point of turn such tought . .more processes around unfortunately. Sad thing is representivity is not the problem but poverty and poor education etc.... are, along with the gross failure by government on these fronts is what is allowing for representivity to be blamed as the problem when it is not and is just a smoke screen for the real societal problems. The costs of such a policy is inmeasureable and often hidden, some of the country's best skills and minds have left in all professions, structural unemployment, pricing mismatches along with many many more effects and could result in shortages of scarce skills much need to grow this society to be an economic power house. What if one of those lost opportunities was another Bill Gates, Ray Kroc, Tiger woods or the like? Any country in the world would love to have people like that in their society they are a huge economic engine and big job creators. Representivity does not build countries and economies but education, skills and opportunity does! Ask the asian tigers. . .less by Tom Thumb on December 06 2009, 20:18 Find this comment inappropriate? Report it

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