Jeremy Gauntlett SC: A good judge?

For a long time being a judge in South Africa required one to be male, white and mainly of Afrikaner ancestry. Of course there was a need for one to know something about the law and most importantly, to know a lot more than other lawyers. The generally accepted proxy for sufficient knowledge of the law was being a senior counsel. Senior Counsel are for want of a better description, super advocates who because of experience, competence (whatever that means) and other political considerations “better suited” than other advocates.

The then white government also made sure that those who were appointed judges would serve the purposes and policy of the government of the day. This was all meant to change in the new South Africa. Emphasis was then placed on those lawyers who had a human rights track record. The power of government was also lessened by the introduction of the Judicial Services Commission (JSC). This body is empowered by the constitution (the supreme law of the land) to recommend suitable candidates to the president for appointment as judges. If the JSC does not recommend you, you cannot be appointed.

The new rules of the game saw all manner of lawyers appointed as judges – women, blacks and other whites. Judges became a lot more than just white, male and Afrikaner. There was also the matter of schizophrenic supremacy of the Constitutional Court and the Supreme Court of Appeal. That however is a subject of another rant – for now we consider the makeup of a judge, a good judge. What is of interest is that the judgement of who or what makes a good judge remains primarily in the hands of white males to determine.

Enter Jeremy Gauntlett.

What I personally know of Mr Gauntlett is nowhere near enough for me to pass any judgement on his person, as a judge or otherwise. What is publicly known of him and on which there is pretty much consensus, is that he is a helluva good lawyer. On this, his friends and foes alike are, as lawyers will pompously state: ad idem – which I believe means, they are of one mind – they agree. Understandably, one who is a good lawyer would make a good judge because the law so happens to be a judge’s most important tool. It is the means by which a judge does the job. I should at this point declare that notwithstanding my limited knowledge of Mr Gauntlett and the consensus on his superior knowledge of the law, I harbour uninformed and somewhat envious dislike of the gentleman. So, that he has not on as many times as he has tried, been recommended to the president for appointment as a judge, doesn’t bother me. I do have a view however on whether Mr Gauntlett would make a good judge – whatever being a good judge means.

It is obvious that during the course of what is nothing but an illustrious career, Mr Gauntlett has pissed off a fair number of people. Some of these people apparently have enough power to get back at him. The lawyers I have spoken to over the last 3 years or so have had an unkind word or two to say about Mr Gauntlett – right after conceding his absolute brilliance as a lawyer. It is during one such conversation, during dinner that I suggested that Mr Gauntlett would make a good Supreme Court of Appeal judge. I suggested that he did not have the personality requisite of a judge of the High Court. I didn’t know at the time that he needed to be a judge of the High Court first in order to be appointed to the Supreme Court of Appeal. I must say that none among the guests at the dinner, who were all lawyers of standing much greater than mine, brought this critical point up. Just as well because had it been brought up that evening I probably would have said, well then tough shit. As it turns out I now no longer believe Mr Gauntlett would be appropriate for the Supreme Court of Appeal either. Mr Gauntlett himself informs my change of view, in his own words.

Chris Barron recently interviewed Mr Gauntlett for the Sunday Times newspaper. It is this interview that in my view disqualifies Mr Gauntlett from being considered as a judge.

He says that the JSC made up the reasons for its decision to turn him down, after the fact. He says that these reasons were not the reasons of the JSC, that they were delivered by one man and not circulated to the other members of the JSC. Let us bear in mind that the court has ordered that the JSC must give reasons for its decisions. Let us bear in mind also that the Constitution requires the decisions of the JSC to have the support of the majority of the JSC. And he not in as many words hints that the JSC lied on at least two fronts. Please appreciate that the JSC is made up of some illustrious characters – judges no less.

I have to ask, who inside the JSC is the source of the information that led to Mr Gauntlett reaching the conclusions he shared with Chris Barron? Is this how one seeking to sit in judgement of others should conduct himself; having a mole inside the JSC? Most importantly, what does that make of the JSC? The JSC clearly has it in for this guy – he says as much. There should be remedies for such stuff shouldn’t there be Mr Gauntlett? Denigrating the JSC is not such a remedy. That too Mr Gauntlett and any candidate for judgeship ought to know. Is it perhaps his legendary lack of humility that blinds him to it?

Nothing is more telling of the character and temperament of Mr Gauntlett than his views of humility as one of the tools a judge needs to do the job of judging. He says this is not a requirement because it is not listed as such by the JSC itself. Granted Mr Gauntlett but is humility not implicit for an office of a judge? One who listens to both sides, with patience and understanding? Is it not as implicit in the job description as the ability to read and write? Mr Gauntlett’s view is that he does not need to be humble and in any event, [unlike the chief justice] he does not claim nor believe that God has called him to be a judge.  Regardless of one’s religious belief I would have thought that a man seeking to be a judge would not insult the faith of others. Especially of one who would be his boss – when he is applying for the job! Yes, Mr Gauntlett does not need to be humble to be a judge he does however need a keen sense of judgement. In his own words to Chris Barron, he does not. The faithful among us when they pray are known to declare: thy will be done . . . They are also known to ask: give us this day our daily bread . . . This Mr Gauntlett need not believe but as a judge he needs the humility to respect or at least seek to understand. So it is not hard to see why the chief justice would believe that what he does is the will of God and what he receives is but the gift of the daily bread he prays for. It is lack of humility that blinds Mr Gauntlett to the subtleties of faith and the faithful – I believe.

Like humility, the duty to protect the integrity of the system through which justice is dispensed, is not a requirement to be a judge. At least not explicitly so. The interview with Chris Barron does very little for the system of justice; it does not call it into question (this Mr Gauntlett is entitled to do) it declares it broken and rubbishes it. Unless the JSC is reconstituted how else would judges (who are members of the JSC) who have been denigrated as much as the interview denigrated them be in a position to consider any further applications by Mr Gauntlett? After being called liars they can only recuse themselves the next time he is up for interview. Wearing humility spectacles, he probably would have seen this – I believe.

We all have our preferences and Mr Gauntlett should not be denied his. He prefers not to be liked when it comes to the courtroom. He sees being liked as a contra-indication of independence. Fair enough. He does however give a distasteful colour to that preference when he says: “if they are going to appoint a white male it would be a far more congenial one”. I concede, the courtroom is a battleground where gladiators do battle on behalf of two warring sides. A judge however – in my humble opinion – is never to descend into the arena with the gladiators.

The interview does not bear dealing with in full here. I do however urge you to find it and to read it for yourself so that you can hear Mr Gauntlett tell you himself why he should not be a judge. It is Maya Angelou I believe who cautions: when someone tells you what they are – believe them. Or something like that. Personally I regard it as lack of judgement on his part for giving the interview but I am glad he lacked judgement. At least now I have more than my uninformed dislike of him on why he should not be a judge, of any court.

What would Biko say?

Xolela Mangcu wrote a book on Steve Biko. The title of the book is Biko: A Biography. At the launch of the book it was lauded as an overdue and necessary work on Biko. Please get yourself a copy of this book, read it and make up your own mind on the book. It is a great pity and a poor reflection on all of us that it has taken this long for a book to be written and published about one of the greatest South Africans. Well done Xolela; I hope there is more coming.

Andile Mngxitama wrote this review of Xolela's book in the Mail & Guardian. The content of what Andile wrote is not important for the purposes of this post. In fact the content of what Andile wrote could be a distraction. Xolela then wrote this review of the review of Andile. The content of that latter review is similarly not important.

My disappointment in these two students of Biko defies all descriptions I could muster. At one point the only response to both was a heavy heart and tears. They will probably have nothing but contempt for my tears, especially Andile (he is not sentimental type). Here is the thing, I have children who I would very much like it if they were to get to know about Biko and Sobukwe. Compared to the beloved Mandela, there is very little written and published by these two giants. Giants that Mandela himself has conceded their greatness. Look at the number of books written about Mandela - look past the fact that there is yet to be a book written by a black author - do you see anything even close to what these two have done? Fortunately, no writer will ever diminish the greatness of Biko or Sobukwe. What Andile and Xolela did does however diminish what I presume (I take responsibility for that presumption) Biko represents. What Biko represents as a black man, an activist and as Andile points out, a philosopher.

These two chaps kept the Black Consciousness torch burning while they were students at Wits. They were comrades facing the challenge and sometimes the wrath of the "Congress" types. They know first hand about the "black on black" violence of those dark days. They are both very gifted and in that sense, this country needs them and others like them if we are to make progress. Selfishly, I need them both for the education of my children. Of course they look at things differently, such is the nature of brilliant minds; but for blackness sake must they exchange insults in the process? I am all for robust debate, that is the only thing that will save us from the rubbish politics of greed and destruction. That however is no licence to be crass. Robust engagement should not take the form of black on black violence albeit of the intellectual kind.

Nobody and nothing is ever just one thing; that much I have learned and that much I believe is true. What stops these two from collaborating on a book about Biko? Instead of accusations and veiled insults could they not trade ideas about the next great book on Biko?

Would Biko read their respective contributions to the Mail & Guardian and then say: "ok, you are right and you got it wrong"? Would that even matter to Biko? Or would he tell them to each write what they like? What about their responsibility to those who do not know what they know? What about their responsibility to black thought? Something tells me that Biko (of whom I know very little) would be less than impressed with all of this.

Black leadership, in all spheres of South African life should take no prisoners as critiques of each other. That I believe is how ideas are shaped and how they become better for the benefit of us lesser mortals, more so for our poor radar-less children. The leadership, especially thought leaders owe us a duty to keep the dialogue respectable. An attack always begets defence; conversation on the other invites  participation in the exchange of ideas. Unfortunately this is not what Andile and Xolela do. They call each other names and in the process the valid points they each make gets lost in the noise of attack and defence.

With the greatest of respect to you Andile and Xolela, you can and must do better. The great work of the leaders and youth of the 70's has been largely undone by the brutal activism of the 80's. There is a lot of work to be done to reclaim the dignity of the black people - who better than the two of you and others like you to undertake that project?

Get over it, move on to a new SA

This seems to me to be the core message of the new South Africa. From Nelson Mandela to Helen Zille to Pieter Mulder. Of course, being stuck in the past is not ayoba but forgetting is. Ok, let me put it in the language you would understand: "bodiba jo bo jeleng ngwana' mmago, o bo kekologe". I may have quoted this all wrong since I have also moved on to a new SA. What this saying means is that one should give a lake that ate one's sibbling, a wide berth. To do that, you should remember that you lost a sibling at that lake. In this case, 69 of them.

As I am writing this, the news report is showing "angry" Sharpeville residents protesting against the government's decision to commemorate Sharpeville Day (now human rights day), in Soweto. Is this decision an oversight or part of a master plan to write Sharpeville Day and all that it stands for from our history and memory. Or is it just the sheer embarrassment of the horror that is today's Sharepeville. New names and new realities, it is difficult to remember. It is difficult to remember and therefore likely that we will go frolicking in the lake that ate our siblings; 69 of them. If the anger displayed on TV is anything to go by, this lake is about to swallow even more of our sibblings.

The day, March 21, 1969 was always known and committed to memory as Sharpeville Day. In the name of reconciliation and assurance to white members of the new SA family that they will not be made to pay for the sins of their fathers; the day was renamed human rights day. An assurance to our new siblings some of whom were the very lake that ate our old siblings. That however, we are not to remember. That we are to get over and move on to a new family with new memories; forgeting the lake that ate our siblings, 69 of them.

I have gotten over a lot of things but I cannot move on. I have learned that moving on requires some measure of resolution of that which you wish to move on from that which will hold you back. How do I move on when I cannot resolve in my head why a powerful memory such as Sharpeville Day should be erased. Just the other day the ANC government decided that the voortrekker monument (a memorial of the triumph of Afrikaners) would now be a South African national heritage. This monument becomes a national heritage as the Voortrekker monument, not the Unity monument or maybe Versoening monument. The lake that ate the Afrikaner siblings will always be remembered and that way less likely to eat others. How do I resolve these two realities? One memory is said to be devisive another, just as devisive becomes a national heritage.

Reconciliation was the key consideration that drove and still drives the decisions of the ANC government. So, when it is decided that the memory of Sharpeville Day would be too stark and too real, it is resolved that Human Rights Day will be the new memory. This is done not in memory of our 69 siblings who died that day but as an assurance to our living new found siblings. The view of the ANC government is that we should move on while the Afrikaner and other communities hang on to their memories and victories; including the memory of eating our 69 siblings.

I do not want to get over this and will not move on to the new SA or anything else. I want to remember that governments are about power. That governments will use force to retain their power. Especially when the spinning and the lying can no longer work. I wish that we could all realise that those 69 people who were unarmed yet gunned down by a police force acting on behalf a government that was determined to hold on to power - were our sibblings, all of us. I don't want to move on to a government that desecrates the graves of their own to appease their new friends but old foes.

Honour the memory of our 69 murdered siblings. Be grateful for the human rights they contributed towards. Do not get over the memory of their death and do not move on and forget them. I for one will not be frolicking in the lake that seeks to wash away the memory of my murdered siblings.

MAYIBUYE!

Here's to another New Year

The date has changed like it changes with every passing day. We now move onto a new year, most of us, with hopes of new things. New as the season may be, some old things will remain with us. One such old thing is how one routinely gets treated like shit for no other reason than that one is black. I concede, that sounds really whingey (yes, it is a made up word). Whingey as it may be, the point is no less valid.

I have lived in 3 South African big cities having grown up in a small afrikaans and racist town. That town has remained small and brutally racist notwithstanding the claims of change and rainbow nation. In this town, part of industrial discipline is the crushing of an employee's testicles and jamming fingers into the employee's nostrils. That is the stuff that make it onto the paper for a day or three at best. The last I saw of this one incident was when the "employers" appeared in court. I have not seen anything on this story since. Most South Africans react with horror to these types of incidents. We react with the same horror when children are brutalised. These reactions of horror do not however find expression anywhere else but on social media or some obscure page of the newspapers.

The conversations on racism and prejudice are at best simply annoying. There is persistent reports of how white males cannot get employment yet the employment records do not support this assertion. Any and all forms of progress by black people is reduced to BEE or some or other leg up by white people. Any and all forms of criminal conduct by black people is nothing but the nature of "these people" and by the way all such conduct is committed in the name of all blacks. All good things are the norm with white people and an exception with black people.

In this new year there will be all manner of open competitions such as idols which will be won by some white guy. All representation of white in our society continues to be that it is right and good. White people work hard, they are clever, they are experienced and do not get or spread aids. That is the magic of representation. A white guy is not just a white, it is a representation of what marketing folk refer to as aspirational. It is the white surburb that I want to live in, a white school that I want my children to go to and the car driven by the white guy and his family that I want. Well you know what all that is black is like right? Why and who would want it?

No sooner than you have moved into that surburb, representation promptly get to work and before you know it, you are a representation of all manner of things. Raucus parties that go on for all hours of the night or the latest beneficiary of the ANC largesse or better still, a beneficiary of some white company BEE transaction. Yes, these are generalisations! The view of a black person as a lesser being is a generally held one.

What in the new year should we do, of course that is if we don't believe that this should be the way things are? Establishments such as restaurants and other places of trade owe their survival to the general public who spend their money there. The conduct of these and other places towards other human beings is done in your name and on your behalf. The way young men were sent into townships to brutalise, maim and kill. The same way a Somali trader is torched to death. These experessions of prejudice towards "the other" is carried out in your name and on your behalf. Your support is your silence or maybe even active participation. So, the next time that indian shopkeeper shouts at the employee like the employee is less than human, let your shock and horror find expression in the shopkeeper's pocket. Go spend your money somewhere humane and make sure that you spread the word.

You may have noticed the change of tone for the worst on social and other electronic media. There is a simmering resentment and anger. This too will someday find its own expression, alternatively it may just create the space and platform for mayhem and senselessness. It is not enough that as a man you do not rape. Every rape is in your name. Your horror and disapproval must find expression in your constant fight (in whatever way you choose) against rape and sexism. So you are not homophobic but you know and socialise with those who are. Give expression to your believe.

These are old issues and some may say these are tired issues. For me, this is a new year and each year that passes by without these old tired issues being dealt with, something will have to give. This may be a new year when we find new ways of having a conversation, even a screaming match, about the things we disagree about. You may find yourself at a place where you are the other and for that reason you may be kicked to death by young boys. Those who survive you may watch the young boys get away with it.

Happy New Year, whatever that means to you.