What if we were all getting it wrong? The strident defenders of Western Cape Judge President John Hlophe and his anxious detractors; the critics who rail against the judges of the Constitutional Court and their supporters?
The conventional wisdom has long been that Jacob Zuma’s interests and Hlophe’s coincide and that the resonance between each man’s narrative of victimhood at the hands of the courts is such that Zuma would be quick to appoint his presumed kindred spirit as a replacement for exiting Chief Justice Pius Langa.
The emergence of Paul Ngobeni in the vanguard of opinion-making on behalf of both men simply served to cement that perception, among the commentariat and in judges’ common rooms.
This rather-too-tidy analysis feeds some very real, and not unjustified anxieties about the plans Jacob Zuma and the ANC have for the judiciary, but in the end it may have the effect of distracting us all from the substance of those plans.
In short, while a large swath of the legal community is preoccupied with a proxy war on Hlophe, Zuma may be preparing to attack on a second front.
As we reported a fortnight ago, there are many in Luthuli House and in the government who believe that Hlophe simply cannot be relied upon to do what he is told. If he were to achieve his political victory — elevation to the Constitutional Court and the robes of Chief Justice — he might revert to the distressing independent-mindedness he showed in his early years on the Cape Bench. His propensity to attract scandal, too, is a worry when there is a job of transformation to be done that will require maximum attention and discipline.
There is plenty of evidence to hand that Zuma’s plans for the judiciary do not stop at choosing a single, potentially sympathetic man for the top job.
He has appointed Jeff Radebe, one of the ANC’s most senior power-brokers, to run the justice ministry and Ngoaka Ramatlhodi, a man whose battles with the National Prosecuting Authority closely parallel his own, both to chair the parliamentary portfolio committee on justice and to serve on the Judicial Service Commission (JSC).
But he has also sent to the JSC Fatima Chohan, a former chair of the committee, who strongly backed Thabo Mbeki’s plans for dramatically increased government intervention in the way courts and judges work. She was angry and disappointed when a coalition spearheaded by Langa, Deputy Chief Justice Dikgang Moseneke and George Bizos influenced Mbeki to stall that package of laws.
They included, among other things, much tighter regulation of judges’ working hours, a new disciplinary tribunal and greater ministerial involvement in both the administration of courts and judicial education.
The real battle lines are drawn around the future of such ”reforms” and the question of exactly what transformation on the Bench might mean. The ANC has spoken of changing the ”collective mind-set” of the judiciary, something that clearly does not exist if recent contending decisions are anything to go by, but it is incontestable that truly Constitution-minded jurisprudence has yet to be embedded.
Just about everyone involved in the debate, from Bloemfontein to Braamfontein and beyond, agrees with this proposition.
The real issue is whether that project lines up neatly with demographic transformation, or at all, and whether the decisions that flow from it would in fact help the government and the ANC more effectively to exercise hegemony — to good ends, or ill.
Zuma and the ANC leadership want to ensure that it does. The clearest evidence yet is the last-minute decision effectively forced on the JSC this week by Radebe to cancel interviews for judicial vacancies. Vaguely citing transformation, the case against Hlophe and the need for new members to figure out their jobs, the statement sent tremors of alarm through the judicial establishment.
”If you’re white, don’t apply” was how some senior legal figures saw it. That may be overdoing it, but it is an unprecedented and a worrying move. It certainly signifies serious intent on the part of the new administration.
In a sense the Hlophe saga was tailor-made for Zuma’s purposes. It helped to discredit the courts when he was fighting corruption charges; now it is helping to weaken some of the key opponents to the ANC’s vision of transformation (that they have their own vision is simply an inconvenience). Ultimately, though, it is weakening Hlophe too, as he seems to be overreaching more with each passing week — and Zuma is giving him more than enough rope.
If the result is that neither Hlophe nor Langa nor Moseneke is in command, the field will be clear for the president to appoint someone more pliant and more reliable to do the real work, which goes far beyond demographic transformation and constitutionalism to the heart of our institutional architecture.