I am writing this as a white middle-class professional woman, a lawyer, a slightly detribalised Afrikaner from a long line of respected nationalists — racists, by their own admission, also patriots in their own way.
Rumour has it that Oom John Vorster (also a lawyer before becoming the prime minister of apartheid South Africa) did his articles under the tutelage of my grandfather in the Eastern Cape, donkey’s years ago.
One of the lingering questions for me is, why whites, who claim not to be racist, object so vehemently to allegedly false accusations of racism? What is it to be called a racist, compared to the suffering and sacrifices of the majority of black people in this country? Are we whites prepared to suffer so little for our country? Are we so fragile, so insecure? Can we not engage with these outpourings of hurt and anger in a constructive way, to help heal our country?
I’ve been working in the field of racism and the courts for the past 17 years. Ten years ago we began training magistrates at Justice College around issues of racism, sexism and cultural diversity in legal decision-making and in the courts.
Our research in the early Nineties confirmed the presence of racism and sexism in the courts.
The first problem lawyers and judges encounter when dealing with racism and sexism in institutional settings is that they are notoriously hard to name. It is difficult to find concrete examples. And when you do, they seem trivial when required to be written up as a kind of ”charge sheet” or ”report”.
Peggy Macintosh in her seminal article written in the late Eighties, White Privilege: Unpacking the Invisible Knapsack, says: ”I was taught to see racism only in individual acts of meanness, not in invisible systems conferring dominance on my group.” She goes on to name 25 examples of invisible privileges whites generally and unconsciously enjoy, of which the inverse are experienced as subtle, yet debilitating, systemic racism.
The second problem for us as legal practitioners is that we tend to use our legal paradigm to understand and process issues of racism and sexism. This often involves unconscious adversarial thinking, unspoken burdens of proof, unarticulated rules of evidence, invisible presumptions of innocence or guilt, to name a few.
These thinking patterns are particularly unsuitable for any meaningful conversation about race or gender.
So, we can all stop holding our breath waiting for the report from the chief justice. No report is necessary to decide whether there is an issue of racism among our judiciary. I can categorically say that there is, that it is pervasive and present all the time, everywhere. How can it not be? We are driven by our racialised identities in all our interactions. To ”find” it, as one ”finds” something in a legal sense, is irrelevant. It involves the proverbial subjective test in law. It is not linked to the intention on the side of the perpetrator, but to a felt sense on the part of the victim. And sometimes even the victim cannot name it accurately. That doesn’t mean that it is not there.
Here is the third problem. White people’s historic and persistently defensive stance. Most black people cringe at the ”I’m not a racist” declaration, knowing the very claim masks the ironic inevitability of its falsity. Any conversation about race is only possible if an accusation of racism is met with an open spirit of inquiry. ”Please explain to me how that could have been perceived as racist, even if I had no such intention. I apologise if you found it offensive.” How hard is that?
At a recent training workshop for the National Prosecuting Authority, senior white managers were shocked to hear from their younger colleagues how there exists almost a presumption of racism among most black people when encountering whites.
Many black people feel it is only over time and with consistent effort on behalf of whites that this presumption can be overthrown. It has to be said that sometimes, not often, the racism is truly only in the eye of the beholder. That, sadly, like genuinely non-racist whites, is the exception to the rule.
Here is the fourth problem. It can be summed up by this quote from senior law professor and judicial trainer in Canada Professor Sheila Martin: ”Finding bias in any institution is troubling, but it may become more difficult where the purpose of the institution is to provide and promote justice. The commitment of law and lawyers to these core values … may mean that once bias has been identified there will be personal and institutional commitments to make practice accord with principle. But this can also result in a refusal to acknowledge reality or a reformulation or rejection of the evidence.”
It is more difficult for lawyers and judges to admit their racisms. And there may be serious consequences with regards to the public’s perception and faith in the legal system, for them to do so, publicly and openly.
In a recent article Zola (Bonginkosi Dlamini) from Zola 7 distinguises between Bantu Education and Ubuntu Education. Whites had neither. The absence of the latter has often left us bewildered about many black people’s capacity to seemingly easily forgive serious mistakes; to be able to collaborate and support one another in the execution of tasks; seldom directly and zealously confronting other’s inadequacies or wrongdoings. None of this means abdication of responsibility or leadership.
It is a different way rooted in a different cosmology, and that whites, generally, make no effort to understand. We are the poorer for it. And racist, at that.
We must tackle the real issue
The storm taking place in what is called the Cape of Good Hope division, writes Fikile-Ntsikelelo Moya, has succeeded in obfuscating the real question: Is there racism there or not?
Instead commentators are focusing on what Judge President John Hlophe (pictured right) should have done. We risk playing the man and not the issue. In some circles the view is that he has the power so he should not be moaning.
Maybe. But instead of dealing with the substance of the matter, some have made it their lives’ mission to put cheeky natives in their place.
Instead of commentators trying to establish whether racism exists or not, we get bombarded with the credentials of individuals in their fight against apartheid. It is the modern era’s equivalent of ”he voted yes” (in the referendum asking whether the Constitution should be reformed to give blacks rights).
Another line finding currency is that Judge Hlophe, as head of the division, had the power to change things. If he had acted more forcefully, however, the same people would have screamed that the judge was acting like a tin-pot dictator.
President Thabo Mbeki has complained about the two nations that live in South Africa; should he shut up because he has the power to change things?
The poor judge now has to go around on a fool’s errand trying to establish which individual was racist and on which day. This is despite his having conceded that racism is hard to prove.
What is not difficult to provide evidence for is the briefing patterns that black and white lawyers enjoy. Here, the old (white) boy networks of influence still rule and black firms are always perceived to be too small or inexperienced.
”Inexperience” is the same argument used to explain why white counsel tend to seek independent arbitration once they realise that their cases have been handed to black judges.
We do not need the chief justice and his committee to tell us that ours is still a racist society.
Those judges appointed before the days of the Judicial Service Commission do not have the stress of their conscience reminding them that they swore to uphold the Constitution because they made no such oath.
It should never come to this. Lawyers and judges should not hide behind sophisticated legalistic arguments about how there is insufficient evidence of racism. Legislators may conceptualise law, but it is lawyers (and judges) who write and interpret it. The rest of us look up to them to lead society’s transformation.