The stakes in the forthcoming Constitutional Court succession race are phenomenally high. President Jacob Zuma will soon appoint four judges, including a chief justice, to fill vacancies in the Concourt.
Not surprisingly, the Mail & Guardian has, through its brand of slanted journalism, recently entered the debate. The paper cites unnamed ”Luthuli House” sources in its claim that Cape Judge President John Hlophe’s ”star is on the wane” and that he is a liability that Zuma should avoid like a plague in his judicial appointments.
Not to be outdone, Tony Leon of the DA also launched scurrilous and unwarranted personal attacks on Hlophe’s integrity. He even questioned his patriotism by using derogatory epithets stigmatising Hlophe as a member of the ”fifth column” who ”seeks to destroy from within”.
Webster’s online dictionary defines the phrase ”fifth colummn” as ”a group of secret sympathisers of an enemy that engages in espionage or sabotage within defence lines or in national borders”. It is said that a typical technique of the fifth column is the infiltration of sympathisers into the fabric of the nation and into positions of policy decision and national defence. From such posts fifth-column activists exploit the fears of a people by spreading rumours and misinformation, as well as by employing the more standard techniques of espionage and sabotage.
This exposes the ugly truth — what really underlies Leon’s attack is his own appeal to bigotry — to the widespread belief that Hlophe’s resort to the courts to vindicate his constitutional rights is seditious, that he must be reviled as unpatriotic and is unfit for judicial service even though his judicial colleagues have agreed that his constitutional rights were violated.
Leon is a reverse ”fifth columnist” in that he labels upstanding and patriotic citizens seditious and then exploits the fears of a people by spreading rumours and misinformation. Sadly, Leon is not alone and these attacks are a well-orchestrated attempt to create a false narrative around Hlophe and a partisan attempt to aid certain factions in the judicial succession battle. President Zuma should emphatically reject such despicable tactics.
It would be hypocritical for Zuma to use untested allegations of misconduct against a sitting judge president as a litmus test for promotion within judicial ranks. After all, the masses overwhelmingly supported Zuma when his own detractors were baying for his political blood and were demanding that he exit the race for presidency based on similarly untested and unproved allegations.
The people displayed a sophisticated understanding of the presumption of innocence, rejected the lynch-mob approach advocated by some journalists and gave the ANC and Zuma a resounding victory at the polls. They are painfully aware that the right to dignity in our Constitution has been interpreted expansively to protect both the rights of pornographers and the rights of lesbians to marry. And yet when Zuma went to court to assert the same right to dignity, he was told by the Concourt that ”the right to dignity … does not necessarily extend to the right not to be named as a suspect, once there is a reasonable suspicion that a crime has been committed”.
The masses collectively rejected the push by these white lawyers, academics, retired judges and politicians who are busy thrusting a culture of resistance or indifference to constitutionalism on the silent majority.
Calls by these self-anointed experts that Hlophe be jettisoned are in line with the racist assumptions that the true apostles of judicial independence and integrity, the sophisticated masters of constitutional law, can never be black folk. In their view the masses who support any black leader accused of any wrongdoing are impulsive, irrational, unrefined, uneducated and undisciplined — they must be basing their reaction on race and not facts or the law.
We are not to ask why Hlophe already has two high court victories, clearly establishing a violation of his rights by his judicial colleagues. We are also not to ask why Hlophe’s impressive accomplishments as an academic, a scholar and a judge are not seriously considered by these so-called experts and alleged ”Luthuli House” insiders.
Suffice it to say that there are eerily strange parallels between the political persecution suffered by Zuma and the emerging pattern of gross violations of Hlophe’s rights. What is particularly disturbing about these parallels is how these matters have been dealt with by the courts, the predominantly white advocates and academics.
A typical unfair attack on Hlophe’s qualifications was a recent Business Day article by Hugh Corder, a former University of Cape Town dean of law. Corder weaves a false narrative about Hlophe built on distortions of his record. On the positive side Corder cites several judgments, including one in favour of Patricia de Lille of the Independent Democrats, another ”landmark” ruling affirming the right of poor and illiterate shack-dwellers to receive their notices in their mother tongue. These are the only nicer things Corder says about Hlophe, but they too reveal a typical condescending description of a highly educated black jurist by his white liberal detractors.
Hlophe has five university degrees, including a master’s and a doctorate from Cambridge. That is a feat that stands unmatched and unrivalled by any of our chief justices since the advent of democracy.
He has published law review articles, including The Role of Judges in a Transformed South Africa (1995). He has mentored and groomed some of the judges who now grace our highest courts. And that is not all — Hlophe emerged many years ago as an expert on the doctrine of legitimate expectation. His published scholarly works on the subject have been quoted extensively in international law journals and are frequently relied upon by our courts. His contribution on the subject has been described by our Constitutional Court as part of ”a rich academic discussion”.
Hlophe used this knowledge in a landmark ruling, The University of the Western Cape and Others vs Member of Executive Committee for Health and Social Services and Others — a case in which the applicants argued that they should be appointed to certain posts even though such posts had not been advertised.
Hlophe held that the applicants could not have legitimate expectations that something contrary to the law would be done. His approach was later praised and emulated by the Namibian chief justice, who lauded Hlophe for having ”lucidly and succinctly stated the principles”.
Corder and others are off the mark in attacking Hlophe for his judgment granting the developer of the N2 Gateway project permission to evict squatters occupying the site outside Cape Town.
The critics leave out the fact that the squatters’ case was anchored on the erroneous premise that they have a substantive and procedurally legitimate expectation to at least 70% of the housing that is to be built there.
Hlophe, a recognised expert in legitimate expectation doctrine, ruled that the residents had no such legitimate expectation. The basis for Corder’s attack on Hlophe’s judgment is only that it was ”severely criticised in many quarters and is the subject of an appeal to the Constitutional Court”. That is woefully misplaced — neither criticism of a judge in some unspecified quarters nor the fact that an appeal has been lodged is an appropriate test of his fitness for office.
Corder blasts Hlophe for submitting to the justice minister a 43-page report alleging racism at all levels of the legal profession, but particularly against black judges in the Cape. Hlophe complained that black judges were ridiculed and despised by the Bar and that the white legal fraternity deliberately humiliated and undermined them. He went on to complain in interviews about ”a calculated attempt to undermine the intellect and talent of African judges”.
In Corder’s view this shows poor leadership by Hlophe — he sinned by raising the racism allegations without seeking the approval of the perpetrators. Corder asks why the attacks would be concentrated on Hlophe alone as opposed to other black judges if the underlying motives of the detractors were racist.
Corder’s own approach gives away the answer — whites cherish and nurture blacks they can dominate intellectually or at least those self-hating blacks who regard approval from whites as their ticket to success. Hlophe certainly does not fit this stereotype — he fights against racial injustice and is unwilling to be used as a tool to bestow on whites a blanket stamp of racial innocence.
He has displayed courageous leadership in the fight against racism and is now being reviled and persecuted.
No serious participant in our national life wants to see the debate on judicial independence and transformation stifled by a resort to accusations of racism. Yet many very serious and very vocal white participants in the Hlophe debate prey on gullibility and fear about affirmative action, demonising ideas and people alike.
Having clutched so long at their contrived narratives about prominent black intellectuals, they are reduced to arguing that disagreement with their lynch-mob agenda is the equivalent of failure to transcend race or understand constitutional principles.
The way towards a better race-neutral discourse on the judiciary is itself clear only when lit by truthful dialogue and respect for all members of the judiciary, not just whites. That goes for Hlophe as well — his leading role as a champion and martyr of transformation will withstand all hidden agendas to derail his judicial career.
Prominent white advocate Paul Hoffman recently asked: ”Who the hell does Hlophe think he is?”
Here is the answer — Hlophe is every black man and one of us. When Hlophe’s name goes on to the list of nominations for chief justice, the names of all the people who gave Zuma a mandate go in as well.
Paul Ngobeni is deputy registrar of legal services at the University of Cape Town. He writes in his personal capacity