Prominent Cape Town advocate Norman Arendse said on Thursday his name was being used by people who wanted to get rid of Judge John Hlophe as judge president of the Cape division of the High Court, and that he was not part of that agenda.
He was deliberately vague about the issue at the centre of the storm around Judge Hlophe. Arendse reportedly wrote to former chief justice Arthur Chaskalson in February to say the judge had told him he had allocated the Mikro School case to Judge Wilfred Thring because the latter ”would fuck it up” and it would be overturned on appeal.
Judge Hlophe has reportedly denied the accounts, branding them an attempt to smear and unseat him.
Arendse on Thursday told the Mail & Guardian he had never confirmed reports attributed to him relating to the alleged incident. ”I have never confirmed it anywhere that that is what he said to me. I know it is ambiguous, but that is where I want to leave it.”
Asked whether Judge Hlophe had told him Judge Thring would ”fuck it up”, he said: ”It appeared to me that other people had already heard about the allegations. He [Judge Thring] appeared to know about it and he asked me about it. He wanted me to verify or confirm it; he put me on the spot.
”I responded to the judge in chambers and believed it was private and confidential. As officers of the court, we have a basic duty to be truthful, and I was.”
Arendse is the chairperson of the country’s main advocate’s organisation, the General Council of the Bar and heads the mainly black Advocates for Transformation.
The Democratic Alliance this week called for ”decisive action” to be taken on the allegations of racism against Judge Hlophe, with the DA’s justice spokesperson, Dene Smuts, calling for the matter to be considered by the Judicial Service Commission.
The DA said the latest allegations were more serious as they ”emanated from no less a person than Norman Arendse SC, who has confirmed that he wrote a letter to former Chief Justice Chaskalson in February this year alluding to the alleged incident”.
Adding fuel to the fire is an allegation by Cape Town advocate Joshua Greeff that Judge Hlophe told him he was a ”piece of white shit who should go back to the Netherlands”.
Last year, Judge Hlophe caused a rumpus by sending a report on racism in his division to Justice and Constitutional Development Minister Brigitte Mabandla. In this, he accused his predecessor as head of the Cape Division, Judge Edwin King, and advocate Jeremy Gauntlett of racist attitudes.
On Wednesday, Arendse said lawyers representing Mikro School, Gauntlett and Jan Heunis were present when Judge Thring asked him about the allegations. He said he had thought that by writing to Judge Chaskalson and the current chief Justice, Judge Pius Langa, he had seen the last of the issue.
”I was not the one who went to the media about this. We should not be surprised [about the racism claims] because the judge president made some allegations against some people in a report. Unfortunately, the allegations he dealt with have been left hanging.”
Arendse said he had no reason to antagonise Judge Hlophe.
”He has never made allegations against me personally. There is nothing he has mentioned against me that would make me run to the newspapers.”
Arendse said the controversy illustrated the ”agenda of certain individuals. They want to get rid of Judge Hlophe.
”I want it placed on record that I am not party to that agenda or that I associate myself with it in any way. I have the same agenda as Judge Hlophe — transformation. My only plea is that we engage on this issue in a constructive and private way.”
Reactions to Judge Hlophe were divided on Thursday. The Black Lawyers Association’s Babalwa Mantame said the allegations had to be investigated, but that ”the language used does not tally with the judge president we know”.
There is deep concern that if such allegations are allowed to continue, transformation might be hampered, Mantame added.
But Hlophe’s leadership style has been described as ”insecure” and ”divisive” in Cape legal circles. His outbursts had led to embarrassment, said one lawyer, while his strong Africanist leanings had not endeared him to white or coloured advocates.
Judge Hlophe has made no bones about his backing of African candidates for acting and permanent appointments to the Cape Bench.
One senior legal professional said the apparent stand-off between Bar and Bench must be seen in the light of historically fractious associations when cliques represented Afrikaner, Broederbond, English or progressive interests.
The problem had been compounded by the judge president’s embroilment in racial matters, including his report to Mabandla.
”I am disappointed I belong to an organisation that is supposedly filled with intelligent people, yet no one has the backbone to tell Hlope: ‘It’s not about race, but it’s about your insecurities’.”