A slippery slope -

Mini-JZ’s legal crusade
In his capacity for causing division—often along class and race lines—Judge John Hlophe is a sort of mini-JZ. Like the ANC president, Jacob Zuma, Hlophe encourages extreme opinions, both for and against. To some, Hlophe is a trail-blazing steward of the transformation project in the judiciary and wider legal profession.
To others, he is a dishonest and divisive force.

The latter group questions his transformation credentials, asking what he has achieved other than to sow deep division in the court over which he is the judge president. The former believe that he is the victim of a sneering and often racist campaign to vilify his name. The two sides find little in common, it seems.

Self-cast in the role of heroic institutional change-agent Hlophe challenges different parts of the legal establishment in different ways. As is well known, in the past year he has thrown down the gauntlet to the Constitutional Court by, first, approaching two of the judges of the court to discuss their approach to an appeal concerning one part of the prosecution case against Zuma.

This matter has still to be resolved by the Judicial Service Commission (JSC), which has been awaiting the outcome of an appeal by the Constitutional Court to the Supreme Court of Appeal (SCA) in Bloemfontein.

The appeal, which was heard last week, made legal history, whether or not the judgment that will emerge avoids the constitutional crisis that has been looming ever since Hlophe chose to sue the Constitutional Court, claiming that it had infringed his rights.

Hlophe does not deny that he approached the two judges of the court; the impropriety of the approach will be the subject of the JSC hearing in April. But he does claim that in disseminating a press statement setting out the nature of their complaint against Hlophe, the Constitutional Court infringed his rights by publishing untested allegations of impropriety.

The High Court in Johannesburg agreed—by a three-two split. Thirteen justices and acting justices of the Constitutional Court appealed and the case was heard by the SCA. Gilbert Marcus SC, for the judges, argued that the “constitutional crisis” was not only an exaggeration but a self-serving one encouraged by Hlophe.

If the appeal is won, Hlophe is determined to appeal to the Constitutional Court. That, he has said, will create the constitutional crisis. No, says counsel on behalf of the judges, there is no right of appeal, merely a right to apply for leave to appeal, which can be heard by the Constitutional Court as if it were hearing an application for recusal.

At that point leave to appeal would presumably be denied on the grounds that it would not be in the interests of justice because of the public perception of partiality that would be created by a court hearing a case in which it is a litigant.

Thus, the judgment of the Supreme Court of Appeal would stand. Its decision to sit with a nine-judge bench (the usual maximum is five) was a prudent one, made in anticipation of the “crisis”.

If the SCA is united in its decision to grant the appeal and overturn the High Court decision a crisis will be averted. If it is seriously split or denies the appeal, the matter could yet have severe political and legal implications.

The stakes remain high. But given the way the arguments were received, it seems unlikely that Hlophe’s thick-skinned assault on the legal establishment will be prolonged further.

Losing the way
When it comes to foreign policy South Africa has really lost its way. To use the pithy phrase that Professor Peter Vale first coined, South Africa has become an “ordinary country”. By that I mean that it has failed to elevate itself above the pragmatic considerations that drive the positions that states take in defence of their narrow national interests.

In the case of the Dalai Lama it is all but impossible to resist the temptation to conclude that the real reason is not the “official” one—concern about the 2010 World Cup—but something sleazier.

If the ANC has received substantial donations from the Chinese there can be little doubt that the ruling party is putting its own interests ahead of the Dalai Lama.

China’s power, and fast-increasing influence in Africa, is such that it must be engaged with and intelligently. But that does not mean you have to throw out the baby with the bathwater.

South Africa is obviously less robust and more in thrall to Beijing and, therefore, more easily persuaded to abandon an internationalist perspective on human rights in favour of narrow economic and political interests connected to direct relations with China. This is a slippery slope. Pretoria abandoned the democratic movement in Zimbabwe. Now the Tibetans. Will it next abandon the Palestinians too?

It started with Thabo Mbeki and Aziz Pahad and their intricate but often unmanageably ambitious schemes. South Africa’s two-year tenure on the UN Security Council, which ended recently, will be remembered not for its idealism or its clever strategic positioning but for its obscurity and quixotically surprising votes on issues such as Burma and Darfur.

Behind the peculiarity was the suspicion that this was about currying favour with the Chinese. Next month the new administration is unlikely to have foreign policy at the top of its priorities. It is likely to be far more introspective. Perhaps that will be a blessing in disguise.

Perhaps the Department of Foreign Affairs can reclaim the authority it ceded to the presidency during the Mbeki years.

Perhaps, better still, it can recover the idea of international solidarity, which was the single biggest reason for the overthrow of the apartheid regime but has been lost since 1994. That, at least, is the distinct impression that is being created. I would like to be proved wrong on this. And on the Chinese donations—but the ANC seems just as reluctant to reveal its funding sources as ever. Different donors, maybe; same secrecy.

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