IN THE transformation debate. merit is not a value-free concept, and that idea had to be debunked to achieve consensus, argues legal academic Tshepo Madlingozi.

In a recent discussion at Wits University on race in legal academia, practice and on the bench, Madlingozi said the vexed transformation debate often threw up the argument that - rec­tifying past injustice meant appointing people otter than purely on merit, but that assumed merit was objectively definable.
Madlingozi was backed by former chief justice Arthur Chaskalson, who said merit meant "different things to different peo­ple". For judges, legal knowledge was necessary, but merit included empathy and an ability to listen.

Only a few cases were decided on law, and most were decided on facts, Chaskalson said. Ability to speak many languages was impor­tant as it enabled judges to understand witnesses better. Assuming the meaning of merit could lead to the idea that racial and gender representivity meant inferior quality.

The Aids Law Project's Adila Hassim said going down that road "only takes us further away from the goal of being able to talk to each other".

The aim of the discussion was to begin a "helpful" dialogue on transformation. Robustly chaired by Judge Dennis Davis, the discussion focused the bar, bench, attorneys and legal academics.

The Legal Resources Centre's Tembeka Ngcukaitobi referred to statistics showing that while there were more black than white law graduates there was a "huge" difference when it came to prac­tising attorneys. "The question is where do they all go, and why?"

Ngcukaitobi said that while there was overt racism in law firms, there were also social net­works that led to white attorneys getting more and better work.

FRANNY RABKIN