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Yes, Adv Hoffman, the legal professions were part of th...

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Yes, Adv Hoffman, the legal professions were part of the apartheid legal order


Ilze Olckers practised as a human rights lawyer during the apartheid era and during the transition to democracy. During this time she also participated in the constitutional and other legislative drafting processes, as well as in policy and systems development of gender and race machinery in a post-apartheid South Africa. She co-founded the Law, Race and Gender Research Unit based at the University of Cape Town in 1995. Since the 2000’s she has been working as an independent law, race, gender and organisational development consultant focussing on transformation issues in South Africa, most recently for the Nelson Mandela University.

South Africa will suffer the consequences today and into the future because of the systems of oppression and the complex historical and inter-generational implications of exclusion and oppression.

This is a response to Paul Hoffman (Daily Maverick Racism, non-racialism, multi-racialism and revolution 11 October 2018)

My response to Paul Hoffman is not to take issue with his main points of outrage namely the “racial social engineering” involved in the election of the new Legal Practice Council by the Black Lawyers Association; the low turn-out, the spoilt ballots and the BLA’s subsequent enthusiastic welcoming of the rather bizarre outcome. It is also not to comment on the constitutional decisions on quotas, or the often “perverse consequences” of attempts to address the injustices of the past, as seems to have occurred in this instance, where the only “beneficiary” of the quotas ended up being a white male from a well-to-do Johannesburg firm.

What inspired me to respond is threefold. Firstly, if this case study teaches us anything at all, it illustrates the challenges, difficulties and complexity of the journeys and processes of institutional transformation in our country. If the best efforts of the representatives of our legal professions or shall we say, a quarrel of lawyers, can result in such contestation and confusion of ideological, jurisprudential and methodological approaches and processes, how much more difficult for the rest of us? When will we acknowledge that this task of transforming our country and its institutions at all levels, require rigour, expertise, knowledge and skills that are currently in short supply due to our on-going ignorance and denial about the need for this work?

Secondly, Hoffman, in my opinion, makes a critical error in his use of the term of non-racialism as a form of gender and race “blindness”. He does not accurately acknowledge the context and the history of the legal professions, or even our country as whole. Race and gender do not become irrelevant in a deeply damaged society striving towards a non-racial and non-sexist order. On the contrary. We need to continue to render these forms of group identities and how they intersect with each other visible and conscious. We need to actively engage with them and hopefully thereby moderate and remedy how they negatively impact members of those groupings. Maybe in an ideal world that we are unlikely to ever see, we will eventually transcend them. We are not yet there.

Following on from the above, he lifts out the right of freedom of association for people to vote as they see fit, regardless of race or gender. But he fails to point out, at the same time, the contradictions inherent in this approach where powerful and previously advantaged people, by using only their unfettered freedom of association, mostly pre-established networks of power and influence, can perpetuate the status quo and so undermine any sincere efforts at institutional transformation. Where do we find the illusive balance between our freedoms enshrined in the constitution and our tasks and responsibilities in terms of the preamble of that self-same constitution to recognise the injustices of the past; heal our divisions of the past, and establish a society based on democratic values and social justice?

As an aside, I also don’t like his tone and the use of the words “proper lawyers” who will have no truck with the “nonsense” of race, gender and quotas. Who are these proper lawyers? While the rest of us, the women and the blacks and the gays, are of course, and have always been, improper. Eish.

Thirdly he claims that judicial independence is obviously not part of the new dawn of the revolution espoused by the BLA. I have been involved in working for justice all my professional life and for as long as I can remember, since practising law in the 80s, lawyers too ignorant or reluctant to confront apartheid and patriarchy in our society and in our laws have hidden behind the idea of judicial or professional independence instead of confronting their roles as beneficiaries or bystanders of the systems of oppression, in the cases where they were not the active perpetrators. Read in this way independence becomes nothing more than unconscious white privilege. To claim that the legal professions were “bastions of freedom and justice” during apartheid, which itself was a legal system, and which was administered and perpetuated by laws and lawyers, everyday in myriad of ways, boggles the mind. To say that the legal professions resisted attempts at interference by the apartheid authorities makes no sense. The legal professions were embedded in the apartheid system. For a greater understanding of this aspect please return to the Truth and Reconciliation Commission Reports and in particular the Special Legal Hearings. (Also see The Legal Profession and the TRC: A Study of a Tense Relationship by Heidy Rombouts Feb 2002 Centre for the Study of Violence and Reconciliation.)

Yes, Adv Hoffman, the legal professions were part of the apartheid legal order. And if we understand systems of oppression and the complex historical and inter-generational implications of exclusion and oppression you can safely say that the legal profession will suffer the consequences of that fact today and into the future. Yes there were also lawyers committed to human rights and social justice, but we practised on the margins, attempting to “use the master’s tools to dismantle the master’s house”. Something our sister Audrey Lorde warned us would never work, but we did what we could.

We can probably also claim that the justices for the new Constitutional Court at the time, were hand selected, in spite of the dominant culture and jurisprudential orientation of the profession at that time. It is definitely not the “professions” that supplied those judges. They earned it through their own biographies of courage and resistance to the dominant positivistic apartheid legal order.

What it seems to me we need more of is the humility to acknowledge the difficult work of transformation, on-going recognition of the profound injustices of the past and how we were all implicated therein, and a collective and collaborative spirit with which to imagine and experiment, using our best thinking and great love, with ways of realising this non-racial, non-sexist society we all long for so fervently. DM


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