A few weeks ago President Jacob Zuma spoke to a conference of South African judges. Apart from committing government to the independence of the judiciary and its key role in the transformation of South African society, the president singled out four jurists who, in his view, personified transformative lawyers. All four jurists have been at the receiving end of the supporters of Western Cape Judge President John Hlophe — former chief justice Arthur Chaskalson, Chief Justice Pius Langa, Deputy Chief Justice Dikgang Moseneke and George Bizos SC.
A few days later the minister of justice, Jeff Radebe, was interviewed by an uncharacteristically uncritical Judge Dennis Davis on e.tv. The pity was that the minister’s enthusiastic endorsement of a nuanced view of transformation of the judiciary, which emphasised not only gender and race but also a commitment to progressive values enshrined in the Constitution, was not tested against previous attacks by government members on a judiciary that was characterised as untransformed.
So the question remained: were the speeches of the president and the minister evidence of a resolute commitment to constitutional democracy or were they a form of glasnost to take the sting out of a heated controversy?
The conundrum was exacerbated a few days after the ministerial interview when Zuma announced the appointment of his four representatives to the Judicial Service Commission (JSC). Critics suggested that none of the four lawyers had previously registered a public commitment to the kind of judicial transformation articulated by the minister in his e.tv interview. Significantly, whereas retiring member John Ernstsen had a long commitment to the trade union movement, the same cannot be said of any of the four new members — thus, whatever the merits of the criticism (which may well prove to be unfair in respect of the approach to judicial appointment), an important constituency is no longer represented on the JSC.
Mercifully, the answer to what direction our legal infrastructure will take cannot be long postponed. The unprecedented public campaign for Hlophe to become chief justice is sure to provoke clearer indications of whether the past month was a glasnost campaign or a recommitment to the constitutional model that the ANC created for our country and which was the touchstone of its politics, at least since the adoption of the Freedom Charter in 1955.
For this reason, it is important for all who are concerned with these questions to examine the 94-page document submitted by the Hlophe campaign to the JSC in support of the judge president’s nomination to the Constitutional Court and for chief justice, even though the latter appointment rests with the president.
The document seeks to justify the transformative record of Hlophe by examining his academic record, his judgments and his extrajudicial career. For the purposes of the theme of this article, two issues require emphasis. Much space is devoted to disproving the charge that Hlophe was uncommitted to the political struggle that destroyed apartheid. The answer given in the document is that Hlophe devoted a year to working for the Legal Resources Centre (LRC) — the pre-eminent public interest law organisation, led for many years by Arthur Chaskalson, which fought many key cases on behalf of the poor, vulnerable communities that were particularly oppressed by the apartheid regime.
In addition, attention is drawn to academic articles written by Hlophe, which both vigorously criticised the apartheid legal system and contributed in particular to the development of progressive law — as, for example, the doctrine of legitimate expectations in administrative law.
Now, all of these claims are true and Hlophe deserves praise for his contributions. But why, it may be asked, does this distinguish him from many others who are smeared as ”liberal whites”? Thus, Geoff Budlender devoted a career of at least two decades to the LRC, spearheading many heroic litigation initiatives to curb the brutality of apartheid. He was turned down on three occasions by the JSC for a position on the very court Hlophe heads, the Cape Provincial Division.
Halton Cheadle was banned for his union work and then went on to litigate major cases that assisted the development of the independent trade union movement — Fosatu and later Cosatu — throughout the days of apartheid.
When it came to academic criticism, academics such as professors John Dugard, Edwin Cameron (as he then was), Tony Matthews, Barend van Niekerk, Etienne Mureinik, Hugh Corder, Raymond Suttner and Fink Haysom all made far more sustained contributions to keeping progressive legal thought alive during the period leading up to democracy — that is presumably why many were chosen by the ANC to provide assistance during constitutional negotiations.
Of course, there is an equally impressive list of heroic black lawyers who required even greater commitment given the obstacles placed in their way by a racist system — Godfrey Pitje, Ben Kies, Dullah Omar, Pius Langa, Dikgang Moseneke and Ismail Mohamed, to name but a few.
But the point remains: if the supporters of Hlophe invoke this kind of argument (fairly, it is conceded), then how do we judge those who on the same test did so much more? Or because they are white, does it then count for nothing?
The second claim turns on Hlophe’s commitment to African customary law. Again, this is a point that has merit, but is this a unique contribution (see the work, for example, of Professor Thandabantu Nlapho)? And further, doubt remains about whether this kind of argument is for a form of law that trumps our Constitution or seeks to render customary law compatible with constitutional values.
The JSC will have to assess these arguments. Will it rely on racial populism so that only the race of the contributor matters or will it employ a test that asks: what approach will ensure that the constitutional values are realised in the lives of the majority of South Africans who remain poor and vulnerable?