Judge Madlenkosi Motha has sparked debate in court. Picture: Oupa Mokoena/Independent Newspapers
Prof Sipho Seepe
From time to time, there are unexpected instances that jolt us out of a sense of complacency and force us to question the routine ways of being. At times, these instances help us realise how off the track we have been on the path we have chosen as a nation.
The decision by Pretoria High Court Judge Mandlenkosi Motha to ask an “all-white group of lawyers to explain why there is not a single black lawyer among them” is a case in point.
The fact that the case was about affirmative action, one would have thought that common sense would prevail. Affirmative action is, after all, a deliberate policy intervention that seeks to address groups that have been historically marginalised and under-represented groups in leadership and various professions. Africans will invariably be the main beneficiaries.
Judge Motha was faced with the prospect of having to entertain a spectacle where beneficiaries of apartheid colonialism discuss how its victims should be assisted. It is no different from a situation where the oppressor advises the oppressed on how to react to the condition of oppression. Talk of white supremacy on steroids.
The reaction to Judge Motha’s intervention was, predictably, racial. While the Black Lawyers Association lauded his action, Motha was roundly condemned in white circles. The Pretoria Bar Council was among the first to criticise Judge Motha.
For the Pan African Bar Association of South Africa (Pabasa), the matter goes to the core of the briefing pattern. It is not a political issue but a constitutional issue. Section 174.2 of the Constitution states that when appointing judicial officers, it is necessary to consider the broad demographic composition of the country in terms of race and gender. To the extent that judges are chosen from competent lawyers, by focusing the qualitative briefing to one race one is effectively creating competence in that race to the exclusion and disadvantage of others.
On its own, the development does not come as a surprise. Despite the history of racial oppression, the post-1994 political establishment has refused to address the issue of race head-on. As a result, race issues will flare from time to time.
For US intellectuals James M Statman and Amy Ansell, this would be one of the instances where “the terrible ‘racial’, political and class faults suddenly found lying so close beneath the dominant discursive patina of reconciliatory rainbowism (are revealed) … a brief instance when conflicts otherwise repressed, hidden, disguised, barely recognised or acknowledged suddenly appear, momentarily revealing the terrifying shape of an alien landscape”.
The group of white lawyers dealing with a case in which Africans are involved seems oblivious to the universal dictum that says “nothing about us, without us”.
Steve Biko long dealt with this form of white arrogance. In a way, he provides an answer to Judge Motha. In his dealing with white arrogance, Biko argued that his “premise has always been that black people should not at any one stage be surprised at some of the atrocities committed by the government. This to me follows logically after their initial assumption that they, being a settler minority, can have the right to be supreme masters.
“If they could be cruel enough to cow the natives down with brutal force and install themselves as perpetual rulers in a foreign land, then anything else they do to the same black people becomes logical in terms of the initial cruelty. To expect justice from them at any stage is to be naive. They almost have a duty to themselves and to their ‘electorate’ to show that they still have the upper hand over the black people.”
Biko is spot on. The real challenge has little to do with white people. It has more to do with the gregarious tolerance of how they are treated. White arrogance is only possible because Africans have allowed themselves to be disrespected. Until this is confronted, no amount of wishful thinking will make it magically disappear. Neither will it disappear because of a mere change of government. Failure to address the colonially spawned racial inequalities has entrenched the roots of white supremacy.
The question Judge Motha asked should be directed at Africans themselves who have allowed the denigration to persist for so long. The African of 2024 does not seem to be far off from that described by Biko. This is the kind who “in the privacy of his toilet his face twists in silent condemnation of white society but brightens up in sheepish obedience as he comes out hurrying in response to his master’s impatient call”.
It does not help that the denigration of Africans is also sustained by Africans themselves. The recent appointment of three white males as acting judges to the Constitutional Court is a case in point. It sends a very wrong and strong signal.
Pabasa could not have said it better: “The appointment of three white males, all at once, sends a chilling and unfortunate message about gender and race issues in our judiciary and our country. The appointment suggests that our three leaders (in all arms of the State), the President, the Minister, and the Chief Justice, all males, and having considered all available personnel, could not find even one able female and black senior practitioner to form part of the three significant Acting Appointments to the Constitutional Court.”
White firms are simply taking the cue from the president, the chief justice, and the minister of justice and constitutional affairs. He refuses to accept the vulgar display of denigration of Africans by Africans. Commendable as his call may be, Judge Motha is barking at the wrong tree. His order should be a clarion call for Africans to stand up and confront the thought system that has reduced them to mere obliging shells.
Advocate Muzi Sikhakhane SC has contemporised Biko. Reflecting on the current realities, Sikhakhane asks: “So what is wrong with us? What is it that makes us betray one another even when we have the so-called political power? What is it that when our leaders were released in jail in 1990/1992 they did not go to the grave of Robert Sobukwe, they did not go to Ntsiki Biko the wife of Steve Biko? They did not go to the wife of Robert Mangaliso Sobukwe. They went to Verwoerd’s wife to hug and kiss her. I am not attacking Mandela. Mandela could do whatever he liked to be magnanimous.
“I am saying this because it symbolises our conduct towards our own. That Ntsiki Biko and Mrs Sobukwe were not the first to get a hug from our leaders who were from Robben Island symbolises our attitude towards blackness. So what exactly are we dealing with?”
Sikhakhane concludes: “We live our lives trying to please the very people who do not think we are not human. Our leaders are at the helm of this consistent persistent desire to please the people who do not like our race, and who keep it down. These are the truths we do not want to tell because we have now commercial interests in the new order.”
Africans are showing symptoms of psychological trauma. The only time they show some form of activism is to join forces with their masters in whipping into line those Africans who display signs of mental liberation.
For now, most Africans cannot imagine a future without being chaperoned by beneficiaries of apartheid colonialism. They have been sufficiently mis-educated to know their place. The African American historian Carter G Woodson, the author of the book, The Mis-Education of the Negro, may as well be talking about the kind of leadership we have in this country. “When you control a man’s thinking you do not have to worry about his actions. You do not have to tell him not to stand here or go yonder. He will find his ‘proper place’ and will stay in it. You do not need to send him to the back door. He will go without being told. If there is no back door, he will cut one for his special benefit. His education makes it necessary.”
Indeed, for as long as Africans despise themselves, they leave others with no choice but to look down on them. For his part, Judge Motha has decidedly taken a view that he does not belong to the plantation that feeds and serves white supremacy.
*Prof Seepe is an independent political analyst
**The views expressed do not necessarily reflect the views of Independent Media or IOL