Transformation debate inhabits parallel universes

23 Jul 2013 | Tony Leon | Original Publication:  BDlive

Ludwig Wittgenstein’s take on the parallel universes we sometimes inhabit applies in spades to the vexed debate on transformation in South Africa, writes Tony Leon

DON’T hold your breath as Palestinian and Israeli negotiators prepare to hold their first direct talks in three years in Washington this week. More than 20 years ago, in From Beirut to Jerusalem, Thomas Friedman dissected the logic, or lack of it, in the endless cycle of confrontation and fitful interludes of negotiation in the Middle East. Recounting an anecdote used by Austrian-born philosopher Ludwig Wittgenstein, Friedman observed: "If you ask a man how much is two plus two and he tells you five, that is a mistake. But if you ask a man how much is two plus two and he tells you 97, that is no longer a mistake. The man you are talking with is operating with a wholly different logic from your own."

Far closer to home, Wittgenstein’s take on the parallel universes we sometimes inhabit applies in spades to the vexed debate on transformation in South Africa.

Chief Justice Mogoeng Mogoeng entered the ring recently in a speech to the lobby group Advocates for Transformation. In its own way and style, the speech was extraordinary. Mogoeng did not content himself to note that there was a lively debate about the selection methods used by the Judicial Service Commission (JSC) in nominations for judicial office or in the briefing patterns of attorneys in selecting counsel to appear before the court over which he presides.

He went much further than that. On one count, his speech contains no fewer than 16 references to unnamed "personalities and nongovernmental organisations … involved with an illegitimate neopolitical campaign to have certain people appointed" to the bench. He claims this is "a disguised protection of white male privilege".

In suggesting a conspiracy is at work from a shadowy, unnamed "grouping of (old order) key operators", who in Mogoeng’s opinion are posing as "agents for the enforcement of constitutional compliance when they are a change-resistant force", Mogoeng crosses several red lines.

He alludes, without elaboration, to a meeting he attended in London, where apparently "toxic inaccuracies" about our judicial selection methods were aired. Perhaps that is the trigger that caused his outrage. However, to then impugn the motives of the many critics of the JSC’s selection methods moves from the realm of sober defence into the far more dangerous territory of conspiracy-theorising and constructing a rigged trial, on flimsy evidence, to hang his detractors out to dry.

A study in contrast to the inflamed remarks of Judge Mogoeng was a speech delivered a few days earlier by his Constitutional Court colleague, Judge Edwin Cameron. He did not excoriate the critics of the constitution or those he termed "constitutional sceptics" of different ideological hues. Instead, he thanked them for their "important warnings" and then elegantly addressed their concerns and rebutted certain of their presumptions.

However, in his preparatory remarks, Cameron noted that "our polity is boisterous, rowdy, sometimes cacophonous and often angry". This statement is unarguably correct, but did not seem to apply to the responses to Mogoeng’s speech, or the lack of them.

For strangely enough, despite the importance of Mogoeng’s speech, the response to it has been extremely muted.

The FW de Klerk Centre for Constitutional Rights noted its "deep concern" about its contents and suggested that Mogoeng had come perilously close to violating his oath of office, which obliges him "to administer justice to all persons alike, without fear, favour or prejudice in accordance with the constitution and the law". It suggested, further, that Mogoeng should "take the greatest care" not to become embroiled in disputes that might come before the courts.

But other than this statement and a comment by Inkatha Freedom Party warhorse Koos van der Merwe, a member of the JSC who suggested Mogoeng’s remarks were close to "hate speech", there has been little public debate.

Advocate Geoff Budlender, for example, who roasted me last year for drawing attention to the South African Communist Party’s claims about the political affiliations of late chief justice Arthur Chaskalson, has kept silent about the pronouncements of the incumbent. So, too, has the independent bar and the host of eminent advocates passed over for preferment by the JSC.

Everyone had a choice in how to take on apartheid, which Mogoeng claims opponents of the JSC are determined to revive. Budlender, and other candidates overlooked for judicial office, such as Clive Plasket, Jeremy Gauntlett, Halton Cheadle and Willem van der Linde, were in the trenches of the struggle. Mogoeng, by contrast, was a prosecutor in Bophuthatswana. By casting the debate in a racial mode, Mogoeng obviates the question of individual choice and reduces it to one about race. Perhaps in warning about the danger of apartheid returning, he was indeed correct.

• Leon is the author of The Accidental Ambassador (Pan Macmillan). Follow him on Twitter: @TonyLeonSA OR on Facebook: facebook.com/TonyLeonSA