Dave Marrs, Cape Editor
11 October 2004
opinion
Johannesburg — SO, DO you still beat your wife? Or, to give the classic sucker punch a contemporary South African twist: Are you still racist?
Anyone honest, and daft, enough to respond with a "yes" merely confirms the questioner's preconceived ideas. Answer in the negative and, far from getting off the hook, you have in fact admitted to past guilt of a social crime that is on par with paedophilia in terms of eliciting disgust in post-apartheid SA.
So abhorrent and damaging is the racism label that I'm amazed we haven't seen a rash of civil cases brought by people who have been accused of racial discrimination without good cause, or at least without solid proof. There have certainly been enough potential test cases, particularly during the past few years.
If the primary tests for defamation of character are the truth, or otherwise, of the accusation on the balance of probabilities; and whether reputational damage can be clearly attributed to the statement and measured in financial terms, a spurious charge of racist behaviour should be one of the most risky libels it is possible to utter in SA.
After all, labelling somebody racist, even when there is not a shred of evidence to support the accusation, can be devastating in a country with a racially divided past and an incumbent government that is determined to stamp out every vestige of apartheid.
Say goodbye to that contract, forget about promotion, don't dream of being invited to that prestigious social event the racism tag sticks like insect innards to a sun-baked windscreen. The more you try to wash it off, the bigger the smear becomes.
The lack of litigation more than 10 years into democracy is all the more surprising since a charge of racism is so hard to prove. Who is to say for sure that a critical comment is motivated by racism? The subject of the criticism may strongly suspect this to be the case but, in the absence of a direct racial reference or other means of proof, the accused could claim any number of other reasons for his actions that would be difficult to dispute. He may even be telling the truth.
Last week Cape Judge President John Hlophe lashed out in public against talk within the profession that "white lawyers" had been spreading the rumour that he was forced to step in to write a judgment for a fellow black judge, who was alleged to be too incompetent to do it on his own.
The case in question was the court's landmark ruling in favour of Health Minister Manto Tshabalala-Msimang's controversial medicine-pricing regulations. Judge James Yekiso wrote the judgment, with Hlophe concurring and Deputy Judge President Jeanette Traverso penning a dissenting judgment.
My initial reaction to Hlophe's statement was one of anger at the guilty lawyers. More power to Hlophe's arm, I thought. If there are unreconstructed racist attorneys out there spreading false rumours to malign a judge with whose judgment they happen to disagree, then they should be named, shamed and disbarred.
Then I realised how vague Hlophe's accusation was. He had no idea who the guilty parties were, or indeed whether there really were any such rumours . He had merely been told such rumours were being spread, yet the judge president of the Cape High Court was prepared to go public with a broadside directed at the entire white legal fraternity of the province.
It then emerged that any rumour-mongering that may have gone on probably didn't originate with lawyers anyway the bar council conducted a hasty investigation and concluded that it was members of the judiciary who had raised the possibility that Yekiso had received help in writing the judgment.
It's all terribly unsatisfactory, not to mention undignified. Before Hlophe's outburst, only Yekiso's reputation had been unfairly tarnished, and that was confined to a relatively small group . Now the slur against Yekiso has been broadcast to the entire country and every white lawyer practising in Cape Town labours under a racism cloud, not to mention the half of the Cape judiciary that is a lighter shade of dark. But still there are no culprits identified, just a general heightening of racial tension. There has to be a better way of dealing with this sort of incident.
And it does not help the perception that whites are getting a raw deal from the judiciary when a black judge makes the kind of comments Nkola Motata is alleged to have made in a defamation action involving the Sunday World, as reported in last weekend's Sunday Times.
No insinuations of a possibly racist nature by unidentified culprits here Motata's prejudice is exposed in the court transcript in black and white. A public dressing down is surely the least the country can expect?
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