‘It’s not about race’

Advocates for Transformation this week reacted to the John Hlophe uproar by rejecting calls for his suspension pending the Judicial Service Commission hearing. Sello S Alcock spoke to its president, Zolisi Mtshaulana.

Advocates for Transformation (AFT) stopped short of calling for Judge Hlophe to stand down, in contrast with the Black Lawyers’ Association (BLA), which called for him to use his discretion. Judge Hlophe has constantly been at the centre of controversy over a period of years. Shouldn’t judges’ integrity and standing in society be beyond reproach?

Your question would seem to imply that because the judge has in the past been at the centre of controversy he must be pressured to step down. It ignores that those events were dealt with separately and findings made in respect of them. We do not think it is appropriate to pressure him to step down because of those past events.

We are now concerned with one complaint emanating from the Constitutional Court.

We in AFT suggest that that complaint should be handled according to the procedure laid down in the Constitution. This provides that when there is a complaint, the Judicial Service Commission (JSC) may approach the president to suspend the judge. Implicit in this is that they will make a recommendation after having regard to the merits of the complaint and in particular after considering whether there is prima facie evidence of serious misconduct.

It would be inappropriate, in our view, for us to act in any manner that may appear intended to influence the JSC. We are aware that the JSC is convening on this issue on Friday. We are of the opinion that the JSC has to date not called for the judge’s suspension, primarily because it has not had the opportunity to fully consider the complaint. It is, in our view, unnecessary to pre-empt their decision. We find it inadvisable for anyone to express views on this issue in circumstances where they are not versed in the facts.

In this light you cannot say that the issue is not one of guilt or innocence. That ignores the fact that none of us has been appraised of the facts, on the basis of which we may legitimately call for the judge’s suspension.

The entire Constitutional Court has expressed deep concern about his actions and referred them to the JSC. Do you not believe that Judge Hlophe would find it difficult to execute his duties with such a cloud hanging over his head?

We are of the opinion that the decision whether the judge should take leave of absence pending the determination of the JSC is one only he can make, taking into consideration the dilemma you are referring to.

The statements by the BLA and your organisation create the impression that the legal community is divided. Is it split along racial lines?

You have no doubt received numerous press statements from various organisations within the legal community. Our view as the AFT has been to respect the decisions of all organisations on the basis that the statements were released after serious consideration and due regard to all facts and circumstances. It is unclear why you must conclude therefore that any differences are based on racial differences.

Is retaining such a divisive and controversial figure in the interests of the administration of justice?

We cannot comment on such a conclusion [that the judge’s actions are divisive and controversial], as we are unaware of the basis of it.

Is your support for him based purely on the fact that the judge is black? Would you be asking him to exercise his own prerogative on whether to vacate his position if he was white? Does supporting black judges at all costs not impede the transformation your organisation is striving for?

You appear to have grossly misunderstood the AFT’s position. On careful consideration you will realise that it seeks neither to support nor condemn the judge. The thrust of the statement is to call for the respect of the Constitution and the procedures it prescribes.

It specifically calls on everyone to afford the JSC the scope to discharge its constitutional mandate. The fact that the judge is black is, therefore, totally irrelevant.

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