Response to Judge Dennis Davis

In today's edition of Business Day, there appeared a letter by Judge Dennis Davis, in which he stated the following:


It is perhaps churlish of me to take issue with Eusebius McKaiser’s article (September 25) concerning the Judicial Service Commission interviews of candidates for the Constitutional Court. This newspaper was an exception in that almost all other newspapers, in their trivial coverage, failed dismally to inform readers of the nature and implications of the process. By contrast McKaiser employed his considerable talent to interrogate the process and thereby promote a necessary debate about a critical decision for the highest court.
Two aspects prompt this reply. McKaiser finds me guilty of an act of racial grovelling in that I said that I had not applied for the Constitutional Court earlier in that, certainly at the outset, the legitimacy of the judicial institution required demographic representivity and whites should not “be greedy” and understand the historical imperative of transformation.
That was my personal decision; I insisted in my interview that race was a necessary but not sufficient condition for appointment, that it was a travesty to read someone’s identity, multifaceted as it generally is, only by the colour of their skin. My point was that race essentialism is a travesty of the charter tradition and, by indirectly employing Frantz Fanon, I posed the question: is the appointment of Kaizer Matanzima more transformative than that of Joe Slovo?
That is not to diminish the historical imperative of redress or the unfortunate arrogance employed in the discourse of many whites, but it is to insist on a debate about the direction of the journey towards a nonracial society.
My second objection is that because I insisted on the relevance of class in a discussion sadly misunderstood by a number who reported on the interviews, I am accused of doctrinaire certainty ill-suited to an intellectual. I made it clear that I still view this country through a class analysis but mediated by race. However, so much has changed in the past 30 years since I first wrote within this framework that it would be intellectually irresponsible for me not to have changed much that has proved to be wrong. Liberals, as important as their work is, do not have a monopoly upon critical thought.
I certainly hold to the view that all thought should be subjected to rigorous and consistent critique. I try my best to follow this approach, even if like many, I may sound more certain than I really am.
Judge Dennis Davis
Cape Town

I like Judge Davis - I think he is super smart, and most worthy of a job at the constitutional court. In a world in which we had already achieved racial and gender equity, there can be little doubt that he would have made the list of final four that are replacing the folks retiring from the bench. In fact, the article he refers to was by and large an uncritical (and deservingly so) Ode to his interview performance.

I still hold the same flattering views of him, despite the attempts in this letter to unpick two very minor passing comments I had made in that piece.

However, given this letter, I think I should point out that, if anything, I was holding back on the two issues he mentions. Not only do I stick by my observations, I can now actually confess that I understated them in order to focus attention on the political farce that was the 'interview process'. The stuff on class ideology, in the second half of the letter, is a bit opaque, so I will leave that aside, but I do want to comment on the issue of whether or not Judge Davis was indulging in racial grovelling, as I called it. I stick by that description. Here is why:

a) It was actually cringe-worthy hearing Judge Davis desperately trying to appease the brute racialism of some members of the JSC by grovelling - and, yes, I think the word choice is apt. The all-too-easy dismissal of "greedy" fellow white lawyers smacked of the worst kind of self-deprecating white liberalism - subtext: "Black Baas, I knew my place back in 94, unlike those racist fellow whitie colleagues of mine, Black Baas. I hope it is ok that I am only now trying my luck, Black Baas, and only with your kind permission of course..." Etc. Etc. Etc.

b) Judge Davis is right that he went on to articulate a view of race reform that is not a numbers game. He did, indeed, and rightly so, suggest that Slovo would be preferable to Matanzima. Most of us would agree. But EVEN THEN Judge Davis then spent a needless few minutes reassuring the JSC that "I am not saying numbers don't matter!!" [ Insert here your favourite impression of Judge Davis, gesticulating most widly.... ] - There was a desperation in his body language to not - please, Black Baas! - be misunderstood, even though his language was clear as daylight. And sensible. This desperation to qualify, and re-qualify, and re-explain, a clear, and sensible, view on racial transformation was further evidence of the racial grovelling that Judge Davis engaged in. In the best case scenario, it was a strategic response; but Judge Davis dripped with sincerity so I think it is more accurate to ascribe the theatrics as coming from a place deep within.

This is not something to be embarrassed about, Judge Davis. Your interview is simply evidence of the irrational numbers game that the JSC is playing. Your grovelling, instead of pretending it did not happen, should rather be seen as the tragic result of a nation still deep in the grip of a national existential crisis borne of a still-fresh, and still-persisting, racist social history, and fabric.

Denial, however, won't help us get to a nonracist ideal on the other side of the existential crisis. Let's start by being honest, shall we?