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22 Jun 2018 00:00
If you’re serious about tackling allegations of racism in your company, then you do not immediately pick up the phone and call a lawyer. Not even a very good lawyer.
SuperSport opted for the wrong first response to Ashwin Willemse’s claims of racism in the workplace.
Before I explain why the law can be useful but can never, by itself, be a decisive and productive tool with which to deal with workplace disagreement, let’s summarise some of what we know.
Willemse walked off a television set during a live broadcast after allegedly, according to his version, being racially condescended to by two fellow rugby analysts, Nick Mallet and Naas Botha.
Thousands of ordinary South Africans immediately supported Willemse — including this writer — because we could recognise our own everyday experiences of micro-aggressions that could have led to Willemse walking away.
We did not and still do not need to see what transpired before that moment to be able to reach into our memory banks and recover lived experiences of everyday acts of condescension that build up deep frustration, a sense of being belittled or excluded and treated with less than the inherent dignity we are born with.
But some of the facts are murky. SuperSport then appointed a few lawyers, led by senior counsel advocate Vincent Maleka, to investigate.
Maleka spoke to and interviewed Mallet, Botha and several of the black staff. He did a site inspection to understand the broadcast set-up in the studio, including the preparation processes that happen before a live rugby match. Maleka, lastly, also interviewed Professor Adam Habib to gain some academic insight into the nature of both overt and tacit forms of racism.
Willemse did not take part in the process. But, in an initial meeting set up by SuperSport before Maleka started his investigation, Willemse reportedly said that he did not believe that Botha and Mallet acted in a racist manner nor that he regards them as racist characters. Yet he also subsequently claimed that race was central to his grievance.
If we cut through the detail in the report, Maleka arrived at the conclusion that there was no clear evidence of either explicit racism nor any intentional implicit racism in the speech acts of Willemse’s colleagues. Maleka also could not find clear evidence of any institutional wrong-doing. Essentially there appears to be a mere personality difference, on Maleka’s analysis, between Willemse and Mallet.
Importantly, right at the end of the written report, Maleka cautions recipients of the report that in fact his findings are not binding. He gives meaning to this qualification by saying that he was of necessity hamstrung by Willemse not having participated in the process and, furthermore, that contested factual claims would need to be ventilated and adjudicated more decisively in a more appropriate forum.
It is for that reason that he urged SuperSport to voluntarily ask one of our constitutional bodies designed to assess allegations of interpersonal or institutional racism to evaluate the claims from Willemse further.
So what can we take from the report and what can we not conclude from the report? It is crucial not to overread the scope and meaning of the report’s tentative conclusions.
Maleka didn’t say that Mallet or SuperSport aren’t guilty of any racism. That is factually false. His conclusion is that in the limited time and within the scope of a very quick investigation there was no clear evidence of such.
I quickly glanced at my feet just now and found no evidence of a snake lurking in my room. Does that mean there isn’t one? I’d have to do more than a quick site inspection to reach a definitive conclusion about what is hiding or not in the nooks and crannies of the building.
Precisely because Maleka is a good lawyer he reminds us in the report of the nonbinding nature of his tentative findings in the absence of more rigorous factual investigation.
You wouldn’t know this if you didn’t read the report but only watched the social media responses of some people hellbent on having their lies of a perfect post-racial nirvana confirmed. Most of them probably haven’t even read the report.
In fact, a subsegment of this group of nonreaders even reacted to the report as if Maleka had declared Mallet to be Mandela 2.0.
But good lawyers aren’t silly. They make findings about the facts before them. They circumscribe their legal analysis in light of what is proven on a balance of probabilities. It does not mean that what they say, as lawyers, exhausts what they think the most complete truth — by which I mean, yes, the nonlegal truth — of the
I am lucky to be friends with some of the top legal minds in the country and have recounted before how one jurist we all respect keeps telling me how he despairs at the South African tendency to defer many crucial political and social questions to the law as though we do not have brains and nonlegal frameworks and tools with which to analyse reality for ourselves.
Put it this way. Jacob Zuma has been found not guilty of rape. Does that mean he is not a rapist? More to the point, do you think you’re not entitled to form a judgment about an alleged sexual predator beyond what a criminal law trial finds?
Zuma has not (yet) been found guilty of corruption. Do you think you’re irresponsible to have a view on the issue in the absence of a legal conviction?
The law matters. It matters enormously. It matters because it regulates our lives in ways that help us to coexist despite our incredible differences as citizens in a society comprising diverse individuals and groups with competing sets of interests.
I think it is fantastic that both public and private law have robust evidential standards that must be met before we declare people criminals and lock people up for crimes we find them guilty of.
But the law doesn’t exhaust dispute resolution. The law doesn’t guarantee the world is a safe place for women scared of sexual predators nor do anticorruption laws guarantee that politicians won’t steal from society.
So when you think seriously about sexual crimes or corruption you need a mixture of legal and non-legal instruments if you want to eliminate these crimes from society.
How does this insight help us to understand why SuperSport approached the Willemse saga wrongly? Because Willemse has for many years been the consummate professional on air playing ball with Mallet. He is not lazy. He is not known for threatening to walk off set. What he did was, by his own history of workplace performance, a uniquely serious act that caught everyone by surprise.
This matters because it is a sure signal that there must be a deep history here that preceded the unusual move from Willemse.
Whatever the genesis of this surprise act, any thinking and empathetic chief executive would know that resorting to quasilegal processes — even outside of a court of law — is the wrong first step here.
What’s eating Ashwin Willemse? That question isn’t best explored by a lawyer. It is best explored by an expert on organisational culture with many years of proven experience of working with individuals and institutions grappling with tension that has surfaced between people who are expected to work together as a team.
As much as I respect Habib and regard him as an acquaintance even, not even he is the right expert. He is not an expert on race, racism and organisational culture. Experts of the likes of Terry Oakley-Smith or Jackie Naude and many others are leaders in this field in South Africa.
They do not try to declare winners and losers. Our legal system is inherently adversarial and it’s hard to teach old dogs new tricks. So even when you tell someone like Maleka not to be excessively and narrowly legalistic in his methodology, and to be more inquisitorial than adversarial, that is not his strength. It’s like asking a Springbok prop to dance like a ballerina. It’s going to be an epic fail.
The only way to get to the bottom of allegations of workplace tensions, racism and institutional oppression and exclusionary values and habits is to adopt a three-pronged strategy.
First, you need the right kind of experts in diversity and organisational culture to do a diagnostic check of your company. This takes at least three to six months and involves a range of quantitative and qualitative methodologies that are well established.
Second, the experts then design the technologies that address the outcomes of the diagnostic phase. This too involves a range of innovative and established tools that can be chosen from within the literature and proven methodologies used by organisational design and diversity experts. This phase takes at least several weeks.
Third, with the express buy-in of the leadership right at the top of the firm, you then roll out the plan to change the organisational culture accordingly. This is a complex iterative process that can take at least a year and requires further follow-up, and periodic check-in, with measurable outcomes.
No big company of the size and history of SuperSport can tackle these issues swiftly, within a week or two, by relying on a lawyer to guide them. It’s the wrong response. The legal response is aimed at signalling to the public a seriousness to “deal” with the matter, but in fact it’s a gimmick.
Willemse has been silent. I don’t blame him. He’s not an idiot.
Why would someone feeling belittled subject themselves to legalistic processes that will treat them as an accused or as a defendant when we are dealing here with the deep emotional burdens and scars of a complex South African history?
SuperSport can still do this right. Call Willemse and call the right kinds of experts. Frame a nonlegal process as I have just outlined. Dispense with tools that pick winners and losers, liars and truth-tellers. And be prepared to subject yourselves to a journey that’s up to 18 months long. Then make sure the chief executive is fully present rather than sending staff to these workshops.
That’s how you tackle our odious past and the manifestation of that past in the present. Calling a lawyer to do a quick-and-dirty is a mistake.
Read more from Eusebius McKaiser
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