Sunday Times

Transforma­tion is real issue

Mogoeng’s critics play the man instead of the ball,

- writes Kessie Naidu

LAST weekend we gathered in Durban to celebrate the life of a loving and loved father, a great lawyer and a good friend, the former Chief Justice Pius Nkonzo Langa.

Glowing tributes were paid to his contributi­on to law and justice in South Africa, his compassion, his understand­ing of human frailties and, perhaps most significan­tly, his outstandin­g humility.

While the country was mourning this great son of Africa, a huge controvers­y — in a sense a tragic irony — had erupted. It was triggered by the comments of Chief Justice Mogoeng Mogoeng at the Advocates for Transforma­tion function in Cape Town on July 6, the clearly reactionar­y responses both for and against by Paul Hoffman, professors George Devenish, Marinus Wiechers and Ziyad Motala, and the interventi­on by the Higher Education Transforma­tion Network, followed by impeachmen­t proceeding­s against the chief justice by Hoffman and his Institute of Accountabi­lity.

I shall not delve in any detail into the content of the respective contributi­ons, for the reason that no useful purpose would result. All of it is known already to those who have shown an interest.

Suffice to add that the moods and language expressed by the main combatants, almost without exception, reflect a combinatio­n of anger bordering on gratuitous­ness and undisguise­d rancour.

The sometimes veiled, mostly unbridled and vitriolic personal attacks unleashed in the free-forall that has resulted do little to enlighten the South African public or solve the real problem.

It is no coincidenc­e that I have chosen to preface my remarks with reference to the passing of a giant among lawyers. I have done so to highlight, by contrast, the almost gladiatori­al verbal combat that has characteri­sed the discourse thus far.

The propriety or otherwise of the chief justice, the head of the highest judicial authority in South Africa, having chosen to articulate his feelings with such venom towards those he described as a “change-resisting force” will be the subject of much debate.

What cannot be the subject of any debate, except by those who hide behind the shield of our constituti­onal democracy but are essentiall­y white supremacis­ts of the worst kind, is that the learned chief justice had the courage to stoke the fire of the real issue, which would otherwise have remained as dying embers threatenin­g to be doused by those he correctly described as “masqueradi­ng as agents of change”.

That burning issue, sought to be evaded by his detractors, which is the real issue, relates to the transforma­tion of the legal profession.

Say what you like about him, the chief justice speaks from the heart. He has the benefit of the experience of racial prejudice being a young black male lawyer long before being elevated to the bench, as opposed to his detractors, like Hoffman, who have none and who lack the ability or even the will to even appreciate it. One look at Hoffman’s CV will confirm why he is bereft of such an appreciati­on.

Hoffman and his ilk have studiously — nay, craftily — deflected attention from the real issue. In this case, attacking Mogoeng about what he had said at the Cape Town function is akin to playing the man instead of the ball.

In dealing with this subject, it is inevitable that one speaks of whites, males, and blacks especially, because the legal profession has been, and still is, predominan­tly white male.

What really drives Hoffman is captured, perhaps unwittingl­y, in the article, “Mogoeng: a most unsuitable chief justice” (July 28), in response to the chief justice’s remarks concerning the skewed briefing patterns in favour of white males. “It is, of course, extremely difficult to change briefing patterns because all litigants want to win their cases. They sensibly choose the advocates who they think are best suited to successful­ly plead their cause.”

It is hard to imagine in this day and age a worse case of blatant arrogance and conceitedn­ess. Shorn of all its verbiage, what he says — because he truly believes it — is that white male lawyers are the best and that is why they are briefed to the exclusion of blacks and women. It is evident that he has not been exposed to the skills, court craft and superior abilities of lawyers such as Pius Langa, Ismail Mohamed, Zac Yacoob, Kgomotso Moroka SC and Leona Theron JA, to mention but a few.

What I can also add for my contributi­on to the education of the seriously misinforme­d or otherwise pretentiou­s Hoffman is that, in my 36 years as an advocate, during which I served as an acting judge, I have come across many white male lawyers. I can assure

Say what you like about him, the chief justice speaks from the heart. He has the benefit of the experience of racial prejudice being a young black male lawyer

you that not all of them had been briefed because they were the best or even able. I can say, without fear of contradict­ion, that some had been briefed purely because they were white.

The chief justice is correct about the fact that lawyers’ bodies like Advocates for Transforma­tion, the National Associatio­n of Democratic Lawyers and the Black Lawyers’ Associatio­n should be more vocal about the unequal briefing patterns if the legal profession has any hope of reform.

Even more disconcert­ing is the fact that the government, at all levels, and even parastatal­s like Eskom and Transnet are doing little or nothing to ensure that black male and female lawyers are truly empowered.

Any lawyer will confirm that experience is the best teacher when it comes to practising law. A worrying trend is the fact that socalled struggle heroes, some of whom have been the beneficiar­ies of transforma­tion initiative­s, sought the services of white male lawyers even though there were black male and female lawyers of outstandin­g ability.

Mac Maharaj and Mo Shaik did themselves no favours by relying on the services of a white male lawyer in the Hefer commission. The same can be said for Jackie Selebi and Judge Nkola Motata.

I have always wondered when I come across such cases whether it is really a case of wanting to win their cases, or being enslaved by some sort of inferiorit­y complex created by apartheid oppression.

There are many white lawyers who, although accomplish­ed, experience­d and of great ability, lack the humility and understand­ing of human frailties, about which volumes have been spoken by reference to Langa — qualities that are so essential to a judge. These lawyers might be intellectu­al giants, but in essence they are merely spiritual pygmies.

I think it is time for all involved in or concerned about the debates relating to transforma­tion of the legal profession, which inevitably impacts on the transforma­tion of the judiciary, should engage in serious introspect­ion, especially a truthful one.

Naidu is a senior counsel in the high court

 ?? Picture: DANIEL BORN ?? UNIMPEACHA­BLE: The late Chief Justice Pius Langa at the Walter Sisulu Square Hall in Soweto in 2009
Picture: DANIEL BORN UNIMPEACHA­BLE: The late Chief Justice Pius Langa at the Walter Sisulu Square Hall in Soweto in 2009
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