The intense controversy surrounding the decision of the Judicial Service Commission (JSC) to end the inquiry into John Hlophe appears to have reached its end. Some legal wailing and political gnashing of teeth might continue, but Hlophe is here to stay as the judge president of the Cape High Court.
And who knows? With a new president, fresh political conditions and — after the tenure of Chief Justice Pius Langa and his likely successor, Deputy Chief Justice Dikgang Moseneke — Hlophe could well end up as chief justice!
But in the here and now, what have we learnt from this saga? The most disturbing finding is the continued and bitter racial division within the legal community. In contrast to the press, where a number of editorials and columns written by both white and black journalists and editors alike called for Hlophe either to resign or apologise, the legal community has failed to lift itself beyond race.
Black lawyers rallied behind the JSC decision. White lawyers wanted Hlophe to go immediately. Admittedly, some significant white jurists held their counsel. If the record of the Johannesburg Bar Council is indicative, some of the most prominent white advocates desperately sought to kick the entire issue into touch and, in effect, succeeded. Not a scintilla of agreement anywhere to be found!
It is cause for concern that, 13 years into our constitutional democracy, the legal community either cannot agree on a standard of conduct for judges or on the propriety of criticism of a body such as the JSC.
Perhaps the first problem can be solved once legislation containing a code of judicial conduct is passed into law. That would allow the JSC to summon witnesses and frame charges in terms of the code. But the problem might run deeper.
The legal grapevine suggests that Hlophe is a hero to some politicians with his aggressive Africanist stance — a politics to which he curiously appears to have come rather late in his career. A JSC recommendation for his impeachment notwithstanding, there was little confidence that Parliament would have approved this drastic move. So the JSC avoided a futile course of action.
If this is true, a disciplinary code, even with the force of law, will be honoured more with fudging than compliance. And remember there is always the potential problem of Judge John Motata, who is facing a criminal charge for allegedly driving while over the legal limit. The problem might be with us again next year.
That possibility brings us back to the core question: will race continue to trump any national agreement about the content of fundamental values — an agreement that must be reached if the constitutional enterprise upon which we as a nation embarked so boldly just more than a decade ago has any possibility of long-term success?
A constitutional democracy cannot survive in the long run if core notions of equality, freedom, dignity, transparency and accountability prove so divisive that no debate is possible over their meaning and development. Even more problematic is the contested idea of citizenship. For some, citizenship means the right of every citizen to participate in public discourse. For others, only Africans as defined narrowly should enjoy that right.
This is a deliberately stark drawing of binary opposites. There are, of course, more subtle positions. It would be preferable for whites who participate in public discourse to do so with the clear knowledge of history and its influence on privilege and power in the present. All citizens should be cognisant of the need to develop the content of our foundational values so that they truly reflect this society.
What the Hlophe debacle has shown is that we are a very long way from being able to hold a decent national debate about these key questions. As we continue to fail, competing positions of frustration and populism have become more entrenched. Funny how 1 400 people meet at Wits to hear about a biography (however good) of the president, but when it comes to the core of our long-term survival as a constitutional democracy, we cannot seem to debate.