It was in February 2005, with a report on racism in the judiciary written by Western Cape Judge President John Hlophe, that the debate went nuclear.
Hlophe had just been castigated by the Supreme Court of Appeal for his handling of the important “New Clicks” case on pharmaceutical pricing. The thrust of his letter to then-minister of justice and constitutional development Brigitte Mabandla was that his authority was being undermined just because he was a black man.
At the time of the report many believed that Hlophe had exposed the real racial tension afflicting in the Western Cape Bench and Bar. The nagging question, though, was whether Hlophe had indeed been undermined or whether he had simply resorted to playing the race card.
“Hlophe was backed into a corner by an institution with a history of racial marginalisation,” says Thabo Rapoo, executive director of the Centre for Policy Studies.
“I think that was safe ground for him and it was safe ground for many people who felt aggrieved by their marginalisation.”
Black Consciousness activist Andile Mngxitama is more blunt about the situation.
“He started believing he is equal to white people, he thought white people were his friends, he thought he could expose them and then they showed him what white power is,” Mngxitama says. “If Hlophe did not write that report, he would have been chief justice by now.”
Perhaps Mngxitama has a point. This week Hlophe failed to make it onto the shortlist for the Constitutional Court.
The letter was sent exactly a month after the ANC released a statement declaring that it was “confronted” by an “important challenge to transform the collective mind-set of the judiciary to bring it into consonance with the vision and aspirations of the millions who engaged in the struggle to liberate” South Africa from white minority domination.
But Rapoo doesn’t think the letter was part of an elaborate strategy to bring down the judiciary in the name of race.
“I think it was a retreat — many black people in the legal fraternity would have retreated to Africanism — he was the first one,” says Rapoo.
While Hlophe’s complaint was unfolding there were other politically charged race themes at play on the Bench. Judge Hilary Squires was labelled a racist after he found Jacob Zuma’s former legal adviser, Schabir Shaik, guilty of corruption — a judgment that would have had Zuma himself facing a judiciary already deeply distrusted by the Âruling party.
Hlophe did not back down. Instead, he put himself at the centre of the nexus between race and succession politics in the ANC. He spoke at a Black Lawyers’ Association meeting and suggested the Constitutional Court might be susceptible to “external political influences” — statements unbecoming of a judge.
Soon after Hlophe was in trouble again after he remarked to an advocate at a cricket match that he had deliberately given a case to a white judge to “fuck it up” so that it could be corrected on appeal.
Hlophe later denied saying this, dragging in Western Cape Premier Ebrahim Rasool to vouch for him. Rasool stayed mum and the advocate who made the complaint in a letter to Chief Justice Pius Langa tried to dodge the issue.
Hlophe was then accused of racist behaviour after he allegedly called attorney Joshua Greef “a piece of white shit” who should go back to Holland. This left Langa in the unenviable position of having to clean up the mess. Instead, some have argued, he fudged it and recommended instead that judges go for diversity training. Swords were drawn.
Hlophe landed in front of the Judicial Service Commission’s disciplinary committee in 2007 for accepting payments from asset management company Oasis without seeking permission from the minister of justice. His excuse: he obtained oral permission from former Justice Dullah Omar, who had since died. Hlophe was let off by a narrow margin, again by Langa, who had the casting vote.
Then, in May 2008 Hlophe was accused of attempting to influence the judgment in the case involving Zuma, in the very same court over which Langa presided. The ugly spat would last until the JSC decision to clear Hlophe of any wrongdoing and right into Judge Johann Kriegler’s subsequent move to take the JSC to task over its decision — for which Kriegler was accused of racism.
University of Cape Town law professor Pierre de Vos, who participated in a televised debate with Paul Ngobeni, a Hlophe supporter and legal hired gun, aptly captures the problem when the dreaded race card is pulled against white South Africans such as Kriegler.
“Mr Ngobeni, predictably, argued that challenging the decision was racist,” De Vos later wrote. “I, predictably, argued that challenging the seemingly irrational decision of the JSC was not in itself racist. This was, of course, not an argument I could ever conclusively win. Given the fact that I am white and Mr Ngobeni is black, many, but by no means all, viewers would have responded emotionally and would have supported the position of the person whose race they happen to share.”
Azhar Cachalia, a Supreme Court of Appeal judge and scion of an ANC dynasty, summed it all up at the JSC hearings in Kliptown this week when he said: “Race sensitivities in this country run deep,” warning about a “numbers game” in the selection of judges which “detracts from the richness of the process”.
But the numbers tell their own story. At an October 2008 talk at the Institute of Race Relations SCA Judge Carole Lewis broke them down: of the 201 judges permanently appointed 92 are white, 74 are African, 16 are coloured and 19 are Indian.
Which was all good and well until Lewis called for skilled men and women, no matter their colour or creed, to be appointed to the Bench.
“The appointment of lawyers with minimal court experience to the high courts has done the public no service,” she said, unleashing a torrent of racial vitriol.
South Africa’s peculiar take on race was on display again this week during the interview of Judge Leona Theron. She was asked by advocate Marumo Moerane how many coloured judges sat on the SCA bench. A rather puzzled Theron muttered the name of Judge Mahomed Navsa. She managed a nervous smile as she looked at SCA president Lex Mpati and said that she was not sure whether he could be considered coloured, to rounds of laughter from the JSC commissioners.
Moerane came to her rescue by saying that, according to apartheid classifications, Navsa is Indian and Mpati would be called a “native”.
“Ek is ‘n tussen,” Mpati said, meaning “I am an in-between”, before asking Theron if she knew the song. “When I am with coloureds they say I am an African and Africans say I am a coloured.”
At the same session Hlophe came full circle. It was there that he was firmly reminded, after a tough grilling, with Langa looking on, of how much damage he had done. As ÂMngxitama would say, they “made him dance”.
Sello S Alcock is crime and justice reporter for the Mail & Guardian