Opinion

A lowering of the bar

Hugh Corder

Those who care about our constitutional democracy need to speak out and act now to protect the judicial role as one of its vital guardians.

In supporting the appointment of Judge John Hlophe as chief justice, Paul Ngobeni accuses me of any number of prejudices and failings (“A nomination in print”, June 12).

As my comments to which he so vehemently objects appeared in another newspaper, I think it best to begin by setting out the background in brief terms. I can only respond to a few of his allegations here: this does not mean, of course, that those not countered have some force.

In Business Day of February 10 this year, Ngobeni argued forcefully that Hlophe was essentially being victimised for his principled stance in support of transformation of the law and the administration of justice, and that the “cacophonous voices” (opposing his return from special leave at that point) were those of “unrepentant racists, hell-bent on undermining those black judicial officers advocating transformation”. Ngobeni makes this point again in different words at the end of last week’s “Comment” in the Mail & Guardian.

I responded in Business Day on April 9 by examining Hlophe’s record on transformation in the context of the judiciary and the law, which I understand as an unwavering commitment to the realisation of the values of our Constitution in every aspect of judicial conduct. I did so under three heads: first, the changes in the racial demography of the Cape High Court since Hlophe became judge president in May 2000; second, Hlophe’s jurisprudential record as seen in his judgments; and third, his role as a leader of the judiciary, both on and off the Bench.

As to the first two aspects, I concluded that the record showed no unusual commitment to transformation when compared with other judges of similar prominence. As to the third aspect, after cataloguing some of the more extreme examples of Hlophe’s behaviour off the Bench, I concluded that he had served more to divide the judiciary and to undermine its accountability and independence than to nurture it as a critical and transformative bastion of our constitutional democracy.

I questioned why it was that Hlophe, among all the prominent black judges, should be singled out for criticism, if his critics were motivated by racism. I concluded by acknowledging the “deep scars left by centuries of racist cruelty and exploitation”, but expressed the view that resorting to allegations of racism “strikes at the heart of our Constitution”.

I stand by all these arguments. Ngobeni has reacted only to my assessment of Hlophe’s jurisprudence. He entirely misses my point: I was not undertaking some general review of the judgments, but tried to assess their transformative qualities. Reasonable people can differ on such an exercise, and I gave Hlophe credit where I thought it due, as even Ngobeni has acknowledged.

Ngobeni, however, accuses me of casting doubt on Hlophe’s intellect generally, citing, for example, the number of his university degrees and his publications.

This is utterly without foundation: first, as I did not address this matter at all; and second, as even the most cursory enquiry would have revealed the extent and frequency with which I have publicly acknowledged Hlophe’s intellectual pedigree, including my role in his appointment (twice) as an honorary professor at the University of Cape Town. Perhaps it must be said that not every good academic makes a good judge.

Significantly, Ngobeni writes nothing in defence of Hlophe’s conduct on the Bench in the two instances for which I criticised him: his unacceptably dilatory and legally controversial refusal to grant leave to appeal in the New Clicks case in late 2004, and his extraordinary, some may even say unconstitutional, use of the contempt power in November 2007 when he detained an advocate in court for three hours after the conclusion of formal proceedings, because the latter had arrived an hour late for a hearing.

In regard to the submission of a “racism report” by Hlophe to the minister of justice in early 2005, Ngobeni alleges that I said that Hlophe had “sinned” by submitting the report “without seeking the approval of the perpetrators”.

He deliberately misreads me: I criticised Hlophe for going straight to the executive, rather than seeking relief through the head of the judicial branch, the chief justice; and I argued that fairness demanded at least “notice” to those named as racists.

In response to my question as to why Hlophe should be singled out for such criticism, Ngobeni now says that this is because “whites cherish and nurture blacks they can dominate intellectually or at least those self-hating blacks who regard approval from whites as their ticket to success”. As Hlophe does not fit these stereotypes, so Ngobeni says, he is targeted for criticism.

This is breathtaking, for we must now assume that the remaining 111 black superior court judges do fall into such categories. Or if not all of them, then at least the chief justice and his deputy, the president of the Supreme Court of Appeal, the other judges president bar one, and several of their deputies. I wonder how they feel about this characterisation of them as people. It seems to me at least to lower them in the estimation of their peers, and the community in general.

The stakes are high. Those who care about our constitutional democracy need to speak out and act now to protect the judicial role as one of its vital guardians.

Hugh Corder is professor of public law at the University of Cape Town. He writes in his personal capacity

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