June 19 to 25 2009

Judging the judges

Those championing the cause of the terminally litigious Judge John Hlophe, such as Paul Ngobeni (June 12), need to be reminded that judges facing disciplinary proceedings are not eligible for promotion. The year-old spat between Hlophe and the entire Constitutional Court Bench (excluding Justice Cameron) does not look like ending any time soon, despite the willingness of the Judicial Service Commission (JSC) to start again from scratch with the pending hearing.

Hlophe can be relied on to apply for the recusal of some of the commissioners, for a postponement pending an unlikely hearing of the appeal he wants to take to the Constitutional Court, or for any other relief on any pretext that keeps him well away from the witness box. These stratagems, and the appeals and interdicts their determined pursuit entail, will keep Hlophe ineligible for promotion until well after September 5, when the interviews for candidates to replace retiring justices are to be held.

Hlophe is in any event unlikely to survive the JSC’s sifting process in the light of his chequered track record. His complaints of racism against colleagues and senior counsel were found to have been refuted after the Heads of Courts afforded his ‘victims” a hearing, a courtesy he did not extend.

His disciplinary history is dismal. Under friendly questioning at an earlier closed hearing he admitted that he failed to declare his income timeously to the fiscus. Probed by advocate Seth Ntai, he admitted that he had no authority to accept an additional R2 500 per month from his friends at Oasis, over and above the R10 000 the late Dullah Omar, then justice minister, supposedly authorised in an eerily undocumented fashion.

Hlophe’s entire relationship with Oasis reeks of impropriety. He was not believed by the JSC when he protested that Judge Siraj Desai knew all about his financial relationship with Oasis when Hlophe eventually gave it permission to sue Desai for defamation. This finding was made despite the absence of countervailing evidence.

Senior judges had to speak sternly to Hlophe about his contemptuous utterances in public concerning colleagues on the Bench. Despite being allowed to squirm away from accusations on oath that he called a young attorney a ‘piece of white shit”, his denials of the racism inherent in the remark are implausible, the more so after his accuser was appointed an acting judge.

Hlophe has spent an inordinate amount of time on long or special leave in recent years and has been singularly unproductive in the writing of reportable judgments. His efforts at litigating his way out of his latest disciplinary troubles are deplorable. They have succeeded only in delaying the finalisation of matters and in polarising the Bench, where the current ‘score” is five judges for Hlophe and 12 against (excluding the complainants in the disciplinary matter).

If there was an ounce of dutifulness left in him, Hlophe would surely resign. He has already single-handedly done untold damage to the integrity and reputation of the Bench, and now he threatens its independence. — Elise Burns, Cape Town

The sycophantic ramblings of Paul Ngobeni are not only astonishing, but add a new dimension to the doctrine of legitimate expectation — that of Hlophe being elevated to chief justice. — Mark Nettelton, Grahamstown

It is important that the constitutional stipulation that race and gender ‘be considered” when appointing judicial officers should not be confused with the ANC’s hegemonic plans. The latter are inconsistent with the Constitution, which prescribes multi-party democracy, not hegemony.

It is also impossible for judges to be ‘subject only to the Constitution and the law”, as the Constitution requires and, at the same time, be ‘responsive to the needs and aspirations of all South Africans” as the hegemonic resolutions of the ANC would have it. All judges must ‘uphold and protect the Constitution and the human rights entrenched in it … and … administer justice … without fear favour or prejudice” in terms of their oaths or affirmations solemnly undertaken when they accept office. None have declined to do so.

Most South Africans aspire to the re-introduction of the death penalty, many are anti-abortion and frown upon gay rights in general and gay marriages in particular. Our constitutional and legal dispensation is anti-capital punishment, pro-abortion and protective of the rights of those who are not heterosexual. Judges who are appointed for their responsiveness to the aspirations of the people will find themselves between a rock and a hard place.

The whole notion of transforming the judiciary to make it ‘responsive to the needs and aspirations of all South Africans” is suspect. If the responsiveness under contemplation is code for ‘ANC friendly” the impartiality and independence of the judiciary are in danger. Investor friendliness, business confidence and our international standing are likewise imperilled.

The only constitutionally compliant way in which to achieve this transformation is to pass laws that are responsive to the needs and aspirations of the people and allow the judiciary to apply those laws. — Paul Hoffman SC, Institute for Accountability

Minister of Justice and Constitutional Affairs Jeff Radebe is said to have prevented the JSC from appointing judges, citing transformation of the judiciary as his reason for delaying the appointments. Transforming the judiciary is desirable, but the judiciary is made up of individuals who must have their attitudes transformed. It is the core that’s rotten, not the casing.

So transformation should include body and soul. If a judge, magistrate or prosecutor is incorrigible, no amount of transformation will change him/her. Judges, magistrates and prosecutors must be imbued with the desire to do good. They must be animated by truth, justice and righteousness.

A person should not win a case because they have hired the services of expensive lawyers. They should win a case because justice prevailed. That’s how I envisage transformation of the judiciary — not stacking the judiciary with people based on sex and race. To me that smacks of cosmetic change. — Sam Ditshego, Kagiso

Ronald Suresh Roberts (June 12) states that ‘in South Africa a judicial bias in favour of the masses is a minimum requirement of judicial legitimacy because, as [US Supreme Court nominee Sonia] Sotomayor explains, ‘there is no objective stance … no neutrality’”.

But Sotomayor’s court judgments do not bear out this possibly misunderstood quote. According to the Supreme Court’s blog (www.scotusblog.com), Sotomayor participated in 75 decisions rejecting claims of racial discrimination while serving as a federal appeals judge. She disagreed with her colleagues in only two such decisions.

Her judgments appear to be have been guided by the law and the facts before her, showing a ‘neutrality” at odds with Roberts’s promotion of ‘a judicial bias in favour of the masses”. — Farell Russak, Cape Town

Tariff increases pose challenges

Sean Woolfrey of the Trade Law Centre for Southern Africa (Tralac) asserts in ‘Proposed policies aren’t always the right ones” (June 5) that our (the South African Institute of International Affairs, SAIIA) study on tariffs is wrong on two counts: that there is significant space for tariffs to be raised to bound levels to protect certain industries that are ‘job creators”; and that this applies particularly to the clothing and textiles sectors. He cites the figures we proffer on average applied and average bound tariffs in the clothing and textiles sector as justification for his claim. Both are selective misrepresentations of our work.

Unfortunately, this is not the first time the SAIIA study has been misquoted in the Mail & Guardian. Lynley Donnelly, in ‘Zuma-ites eye higher tariff walls” (May 19), incorrectly infers that SAIIA is in favour of tariffs being raised to bound levels and selectively quotes from the document, highlighting the average tariff numbers in respect of clothing and textiles, which, in turn, drew Woolfrey’s riposte.

Our study is deliberately pitched at a high level of aggregation and consciously avoids sectoral detail. Hence we are surprised that both Woolfrey and Donnelly select only the clothing and textiles sector to highlight their views.

The meat of our study accords with Woolfrey’s conclusions regarding the negative implications tariff increases could have for South Africa’s economy. In addition to his arguments we note that raising tariffs to bound rates would raise costs of imported intermediate inputs thereby penalising exporting firms and raising the costs of final goods for poor consumers. To propose this path could invite major ructions within the government and the business community. Tariff increases would pose serious challenges to the Southern African Customs Union at a time when it is experiencing considerable turmoil. Ironically, South Africa has been a relatively good G20 citizen by not raising tariffs so far, but to do so would invite retaliation from our trading partners and further compromise the beleaguered Doha round.

This leads us to agree with Woolfrey’s conclusions and welcome his qualifications concerning the clothing and textiles sector specifically. – Peter Draper and Gilberto Biacuana, SAIIA

Mourning the denialism

With much gall, but no apparent irony, Prince Mashele tells South Africa’s young achievers to prevent the future degeneration of the country by preparing to answer the question: ‘Where were you, and what did you do?” (June 12). A good question, especially given its source.

I find it hard to locate myself when South Africa’s public service standardised looting and more than 300 000 people died because they were not allowed antiretrovirals. I can’t remember where I was when violent crime killed 250 000 more; when the public education and health systems imploded; when land reform collapsed under the weight of its own implausibility and Eskom mangled the power grid. Nor can I remember where I was when South Africa began coddling dictatorships.

Mostly, I think I was lost in mourning the denialism and defensive racism that infected every government response. But, I do remember exactly where Prince Mashele was: on his knees in the office of the president, spinning this shit. — Eric Pelser, Cape Town

Bradlow was spot-on

Khadija Bradlow was spot-on in her excellent article (June 12) on the elite’s grossly excessive, ostentatious car culture. But, after turning over a few pages I was surprised to find in the Motoring section a lengthy article on the latest BMW sports cars.

The sDrive35i model goes for a mere R682 500. If provincial MECs such as Nomantu Nkomo-Ralehoko are entitled to a R920 000 Merc, then presumably this BMW is fit only for a deputy director or some less senior official?

Please keep up the critical analysis, but we don’t need out-of-line advertorials? — Paul Maylam, Grahamstown

In brief

I must point out a misrepresentation regarding some of those responsible for the programming of the Labia in its first incarnation as an independent cinema in the early 1970s (Friday, June 12). I, Trevor Steele Taylor, was never the director. I did make clear to Bruno Morphet that the programming was the work of a young film-buff cabal, which included, besides myself, Eric and Barry Liknaitzky. I was not the most eminent of these. — Trevor Steele Taylor, Desolation Row

South Africa’s shameful lack of recognition of Philippa Johnson’s achievement is highlighted by her omission from your supplement 300 Young People You Must Take to Lunch. Given the circumstances under which South African riders have to compete internationally, her achievement is nothing short of remarkable. — Patricia Lehle, Johannesburg

Your tribute to young South Africans was a badly-written, amateur attempt: gushing, breathless paragraphs peppered with clichéd adjectives. Sis, man! And to include a PRO, nogal — a PRO! Just what, pray tell, makes the mindless press-release industry noteworthy? Have you lost the plot completely? — Herman Lategan, Sea Point