This newspaper recently warned of the consequences of a Jacob Zuma presidency, which, to paraphrase the argument, would bury principle in favour of populism and expedience (“Be afraid — be very afraid”, October 14). Sadly, the argument can now be extended to the judiciary and its custodians, the judges and the legal community.
Recently, the Institute for Democracy in South Africa and the University of Cape Town’s law faculty sponsored a two-day colloquium dealing with the transformation and independence of the judiciary.
It was dominated by two controversial debates. At least two senior judges argued that it was wrong to replace the apartheid-era crime–control model of criminal procedure with a -Constitution-based, human rights-oriented approach. It’s only 11 years into our constitutional democracy and already there are powerful voices who wish to still the apartheid criminal procedure. That our state is founded as a constitutional democracy appears to be less -important than the adoption of a pro-police model — it is as if they blame the Constitution for crime and inadequate policing.
The other debate was the -denigration of white judicial appointments, without considering a particular judge’s record. -According to this argument, transformation is a numbers game.
To the credit of participants, this view was not left uncontested; a number of progressive lawyers argued about the importance of values to transformation, and the need to ensure that race and gender remain necessary conditions for change.
Which leads to the soap opera around the Cape division and its Judge President, John Hlophe. Most South Africans don’t know the details of the squabble, and factual details should be left to an inquiry. It is the responses of the legal community, however, that are -disturbing.
Faced with the extraordinary situation of two senior counsel going on record to raise allegations that are hotly denied by the judge president, 13 judges from the Cape division issued a statement calling on all lawyers and judges to rally around Judge Hlophe. This on the basis that there is a conspiracy to unseat the judge president.
Even assuming that there are “forces” exploiting these complaints (a -possibility), how does that justify an unconditional display of support for the judge president?
Surely if there is a conspiracy that extends to senior lawyers lying in order to unseat Judge Hlophe, the public are entitled to an investigation? And if the allegations are true, what are the 13 judges then to say about their unconditional support?
If reported correctly, the Black Lawyers Association (BLA) is not interested in whether the allegations are true. A spokesperson said Norman Arendse SC had no right to make his allegations public, and even if these proved true, Arendse should resign as chairperson of the Bar.
Does the BLA contend that, even if the allegations against Judge Hlophe were true, no action should be taken against the judge president?
It is surely not the approach that should be taken by so important a group of lawyers as the BLA. If Judge Hlophe is a victim, should there be no consequences for his victimisers?
But if this is the approach favoured by some, what then -happens to the principles of accountability and transparency? They rapidly become cast in racial stone — no steps to be taken against a black public figure — only whites to be disciplined together with their “lackeys”!
It is disturbing that little is heard from other voices — progressive lawyers or civil society. If the legal system is to support the Constitution’s vision of non-racism and accountability of power, then we should ensure that due process is employed to implement these -principles.
To seek to subvert the public’s right to know the truth by the employment of the kind of rhetoric displayed recently is to imperil the attainment of our constitutional vision.
Neither side has admitted to lying — but in the interests of the legal system they would let bygones be bygones! It is an extraordinary failure of leadership.
From other public controversies there is one clear lesson: allow this issue to be swept aside and the judiciary will only have itself to blame when the populist town crier replaces the constitutional judge as the arbiter of public disputes.