Why do Westerners get it so wrong?

James Myburgh on Judge Marshall's recent comments on the SA judiciary

JOHANNESBURG - There is a long and ignoble tradition of Western intellectuals taking an interest in foreign regimes and getting it horribly wrong. One of the most notorious examples of this is Sidney and Beatrice Webb's 1935 "Soviet Communism: A New Civilisation". It is exquisite apologia for the Stalinist system written by two of England's foremost social scientists. The third edition, published as a single volume, runs to a full 1007 pages.

At one point the authors address the question of whether Joseph Stalin is "in effect, a dictator" as some of his detractors had claimed. They reply that "We have given particular attention to this point, collecting all the available evidence, and noting carefully the inferences to be drawn from the experience of the past eight years (1926-1934). We do not think that the Party is governed by the will of a single person; or that a Stalin is the sort of person to claim or desire such a position. He has himself very explicitly denied any such personal dictatorship in terms which, whether or not he is credited with sincerity, certainly accord with our own impressions."

It was commonplace, at the time, for the very clever to write such nonsense. In his 1945 essay Notes on Nationalism George Orwell wrote of how many literary intellectuals had come to strongly identify with Soviet Russia. Such a transfer of loyalties, from their own nation to an alien one, had led fairly sensitive and intelligent people to write "slavish or boastful rubbish" about Stalin, the Red Army and so on.

For an intellectual, Orwell noted, such "transference" had an important function. "It makes it possible for him to be much more nationalistic - more vulgar, more silly, more malignant, more dishonest - that he could ever be on behalf of his native country, or any unit of which he had real knowledge."

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. This stands in marked contrast to the rigorous and critical stance they have to take in analysing their own societies - if they are to maintain their reputations and the respect of their peers.

There was a striking example of this disjuncture in the recent lecture, in Johannesburg, by Margaret Marshall the Chief Justice of the Massachusetts Supreme Judicial Court (see here- PDF). Marshall was born in South Africa, studied at Wits University, and served courageously as NUSAS president in 1967. She left the country in 1968 to study in the United States and has not looked back, pursuing a distinguished legal career in her adopted country.

In November Marshall was invited to Johannesburg to deliver the Bram Fischer Memorial Lecture by the Legal Services Trust. At the beginning of her address she stated that "I do not presume to speak with authority about the South African experience. Rather, this evening I offer an American perspective on judicial independence."

Her comments on the United States were critical and insightful, and in certain respects, highly relevant to South Africa. She stated, at one point, "Trial judges, and all those who bear the weighty burden of judicial authority in a constitutional democracy, must possess a deep knowledge of the law and skill in its practice."

Her limited comments on the judiciary South Africa, however, managed to be both slavish and boastful. On the issue of "diversity" on the bench Marshall stated: "In its fifteen years of constitutional democracy, 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."

This statement, clearly intended to flatter her South African audience, actually showed great contempt for it - given the manner in which individuals like Nkola Motata and John Hlophe have recently brought the judiciary into disrepute. It also revealed a deep lack of knowledge or concern over what has happened to the South African judiciary over the past decade.

After 1994 the initial intention, at least of those with the best interests of the judiciary at heart, was to balance the desire for a more racially diverse bench with the need to maintain its professionalism and integrity. The 1994 Judicial Service Commission "Guidelines for Questioning Candidates for Nomination to the Constitutional Court" stated that attaining a broadly representative judiciary "cannot be understood to refer to a need to constitute a court which represents the races and genders in direct proportion to their share of the national population".

There was an understanding then that judges still needed ‘a deep knowledge of the law and skill in its practice.' However in October 1998 the ANC wrestled control of judicial appointments away from the lawyers on the JSC. From then onwards the attainment of a judiciary which reflected the composition of the total population became the overriding concern. The merit and expertise of the individual applicants was hardly considered relevant at all - although several good appointments still managed to slip through the net.

In 2004 the Minister of Justice Brigette Mabandla boasted, in parliament, how "of the 53 new judges appointed since 1994, 89% of them are black." This trend has continued, and as of July 2009 the proportion of white South Africans on the bench had successfully been reduced to 44,1% of the total, well below their proportion of the legal profession (see here).

In October 2006 Judge Azhar Cachalia warned that the JSC that it had "made mistakes" in its approach to appointments, and "those chickens are now coming home to roost." As an acting judge on the Supreme Court of Appeal he had had to deal with appeals against "shocking" high court judgments that contained the "kind of mistakes that should not be tolerated." (Cape Times October 16 2006)

After a brief respite during the Motlanthe presidency, the Zuma government is proceeding aggressively onwards with the implementation of pure racial and gender proportionality on the bench.

In an address to parliament in June Zuma stated "The transformation of the judiciary entails amongst others having a court system that the people of South Africa have confidence in. Obviously as part of this, we need to ensure that judicial officers reflect the demographics of our country." To give effect to this objective he has appointed a Minister of Justice, Jeff Radebe, obsessed with the achieving this outcome, and nominated a number of racially driven individuals to the JSC who can be relied upon to implement it.

Minority applicants who dare 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 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.

So, Marshall is certainly correct to claim that the ANC has attained its racial goals in the judiciary speedily and on an impressive scale. Whether this is "great cause for pride and celebration" is more open to question.

It represents, for one thing, the triumph of extreme racism. 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?

It is also untrue to pretend, as Marshall does, that this has done no harm to the quality of justice in South Africa. As a matter of simple arithmetic: excluding three quarters of the legal profession, including the great majority of your top advocates, from appointment to the bench can hardly do the institution any good.

Some of South Africa's foremost jurists have raised concerns over the way in which poor appointments, by a race obsessed JSC, have harmed the integrity of the judiciary and the administration of justice. Most recently Judge Johann Kriegler stated that the way in which the JSC was executing its mandate constituted a threat to the independence of the judiciary.

Before delivering her lecture, Marshall 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 currently in charge.

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