Transformation is real issue
Mogoeng’s critics play the man instead of the ball,
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