Constitutional Hill

Hlophe

Selebi case: “The dog ate his homework”

May 3rd, 2010
by Pierre De Vos.
57 comments

The state’s cross-examination of former Police Commissioner Jackie Selebi finally came to an end on Friday. I have been following the cross-examination of Selebi on the Mail & Guardian’s amaBhungane Twitter page: not as good as being in court oneself, but facinating – even riveting – nevertheless.

At the end of the cross-examination it was very clear why Selebi’s council, Jaap Cilliers, had brought an application for the acquittal of Selebi at the end of the state’s case. Having consulted with Selebi, he must have realised that Selebi might not make the best of witnesses and that he might not be able to keep his story straight, so it was imperative to keep him away from the witness stand.

We do not know – and I am in no way speculating – on whether Selebi will be convicted on any of the charges he faces. It is for a court to decide whether the state has proven its case beyond reasonable doubt after hearing all the evidence. But the cross-examination did reveal that Selebi was a less than reliable witness. His “Swiss army knife” defence (Selebi claimed previously that the only present Glen Agliotti ever gave him was a Swiss army knife) turned into a classical “the dog ate my homework” defence.

Selebi claimed during the cross examination that he had cash slips and receipts in his possession proving what he had spent his money on and disproving the state’s claim that he had received hundreds of thousands of Rands from Agliotti as bribes. But on Friday Selebi failed to bring cash slips and receipts to court as requested because he claims his wife destroyed them on Thursday.
 
Both prosecutor Gerrie Nel and Judge Meyer Joffee looked astonished when Selebi told them he did not bring the receipts because his wife did not only discarded the slips but actually shredded them (yeah right). The former police chief claimed that his wife had shredded them on Thursday because she had found credit card statements which she thought would be better evidence. Nel described this explanation as ridiculous and accused Selebi of playing to the court. He said this showed Selebi was arrogant and had no credibility, a claim one finds difficult to dispute.

Then there was the “secret report” that Selebi claimed he had declassified and had at home. He was sent home to fetch it, but when he produced a document the next day Gerrie Nel claimed that the document was a “cut and paste” job. Nel pointed out several problematic issues in the document such as different colours in the printed fonts, the SAPS logo cut off on the front page original when it appears in full on the “copy” handed in earlier and differences in the typing on various paragraphs.

As I followed the crumbling of Selebi’s various stories under relentless cross-examination, I was reminded of the Judicial Services Commission (JSC) and wondered whether the members of that august group were taking notes and whether they felt embarrassed at all for deciding not to proceed to establish the truth of the complaint of gross misconduct levelled against Judge President John Hlophe by the judges of the Constitutional Court and not to consider the counter-complaint by Hlophe either.

Remember, the majority of members decided that although there were fundamental disputes of fact between the version put to it by Judge President John Hlophe and the versions put to it by other judges of the Constitutional Court (in other words, although the JSC admitted that either Hlophe or the judges of the Constitutional Court were lying), the JSC was not persuaded that cross-examination would “necessarily lead to more clarity on the disputed issues”.

As has so amply been demonstrated by the Selebi case (as well as by the devastating cross examination of Menzi Simelane at the Ginwala Inquiry where he was exposed as a person with a difficult relationship to the truth), this kind of argument is such utter nonsense that one cannot believe that any lawyer would have made it with a straight face. If the three main protagonists had been cross-examined vigorously two things would have emerged.

First, some witnesses would have shown themselves to be more credible and others less so and thus their version of events would have had to be accepted as the more plausible. After cross-examination the finder of fact must decide whose version was more probably true and to help them in this, credibility becomes all important. Cross-examination helps to make findings on credibility “finish and klaar” (as Selebi said about his friendshipp with Agliotti). 

Second, the judge or judges who had lied might very well have been exposed as such because – as Selebi has shown – if you start lying it is difficult to keep your story straight and then you tell more lies, which leads to even more lies and finally to exposure as a liar.

In any case, as it turned out, the cross-examination was not really necessary as the JSC had already decided who were probably lying to them during the Hlophe affair and who were telling the truth: it just did not want to take the action it is constitutionally required to take. Given the fact that both Hlophe and Judge Chris Jafta (who had contradicted Hlophe’s version of events) applied for a position to the Constitutional Court after the decision by the JSC not to go ahead with a hearing, and given the fact that the JSC had nominated Jafta for a position on the court but not Hlophe, one must make the irresistible inference that the JSC believed Jafta and Judge Bess Nkabinde and not Hlophe.

There were two versions of the events that took place in the offices of Jafta and Nkabinde before the JSC: Hlophe’s version and the version of the other two judges. If the JSC had thought that Hlophe was telling the truth, it surely would not have appointed Jafta to the Constitutional Court. Even for the JSC it must surely be unthinkable to appoint someone to the highest court in the country it suspects of having told blatant lies about a fellow judge. If it had thought Hlophe was the honest one, surely he and not Jafta would have been nominated for a position on the top court by the JSC.

In any event, what the Jackie Selebi cross-examination shows is that the JSC’s argument that cross-examination of Hlophe, Jafta and Nkabinde would not take the matter further was about as credible as Selebi’s “the dog ate my homework” defence.  Given the fact that the JSC’s original decision has now been set aside, the JSC will have to make a new decision on whether to do its job or not. When it does, it would really enhance that institution’s credibility if it keeps in mind what happened to Selebi under cross-examination. But don’t hold your breath.

Hlophe: Here we go again

Apr 20th, 2010
by Pierre De Vos.
32 comments

The Cape High Court yesterday declared “unconstitutional and invalid” the bizarre decision of the Judicial Services Commission (JSC) not to investigate the complaint and the counter complaint by the judges of the Constitutional Court and Judge President John Hlophe.

The Court agreed with the view – first raised on this Blog – that the JSC was not properly constituted when it made its highly controversial decision not to decide whether it was Hlophe or the judges of the Constitutional Court who were lying through their teeth about an alleged attempt improperly to influence the judges of the latter court in the Zuma case.

The Court found that section 179(1)(k) of the Constitution, which states that “when considering matters relating to a specific High Court” the Premier of the Province concerned and the Judge President of that Court had to form part of the JSC is not unclear or ambiguous. There is nothing vague, inconsequential or irrational about the requirement – clearly stipulated in this section of the Constitution - that the Premier must form part of the JSC when it decides on the disciplining of judges of that court.

The High Court thus found that:

Of prime importance is the need to hold an investigation into the allegation against the judge in question, an investigation properly conducted before a constitutional body created to carry it out. Such a question is, in my view, unquestionably a matter which relates to a specific High Court of which the judge is a member because the consequences of its outcome to that Court.

The Court also found that the JSC was improperly constituted because one of the representatives of the advocates profession did not take part in the original decision. Finally it found that the JSC did not take a proper decision because the original decision was not supported by a majority of the members of the properly constituted JSC.

The Court did not order the JSC to have a full hearing. It did not order the JSC to actually make a decision about the complaint and counter complaint – something a majority of the JSC members present at the original decision bizarrely decided not to do. Yet the inevitable consequence of the decision is that the JSC – now properly constituted – will have to decide afresh whether to hold a full hearing or not.

The judgment poses some difficult questions.

First, one may well ask why all those lawyers and judges on the JSC have for all these years failed to consider the fact that the plain meaning of the constitutional text required the Premier and the Judge President to be present when any matter relating to the relevant High Court is decided. For all these years the Premier and the Judge President have been treated like the ten members of Parliament and have only sat on the JSC when that body considered appointments to the bench.

This is surprising, to say the least. While section 178(5) of the Constitution clearly states that members of Parliament should only be involved in the appointment of judges and not in any other work of the JSC, the Constitution does not contain a similar provision regarding the Premier and the Judge President. As the High Court found (correctly in my view), the text of the Constitution is pretty clear and requires the Premier and the Judge President to be involved in all matters relating to the specific High Court. Yet the JSC seemed to have disregarded this provision for all these years – almost as if the text of the Constitution did not matter one bit.

The JSC may of course decide to ask for leave to appeal the High Court decision. If I was their legal advisor I would counsel against such a move as the JSC has a limited chance of success on appeal. This is because one would really have to do some serious legal gymnastics to interpret the provision differently from the manner in which it was interpreted by the High Court and the chances are rather slim that the SCA would be prepared to do that.

Second, the High Court decision was not based on the correctness of the original JSC decision. Theoretically the JSC could therefore reconvene – now properly constituted – and make exactly the same decision to close its eyes to the lies and deceptions of one or more of the members of the South African judiciary. We know somebody lied. We know the JSC was too scared to find out who lied – Hlophe or the two main complainants. (I, for one, suspect why the JSC wanted to avoid making a decision at all cost.) Will the JSC now save face and actually do the right thing and investigate the complaint and counter complaint properly as it is legally required to do?

Third, it is unclear who will have to form part of the reconstituted JSC. Section 178(1)(k) states that both the Premier and the Judge President “or an alternate designated by each of them” must be present when the decision is revisited. We know Hlophe cannot be present as he is the subject of the complaint. Can he designate an alternate or not? Surely Hlophe would not be able to designate one of his friends to take his place as it will be presumed that this person is there to represent his interests. Maybe the Deputy Judge President – as the second most senior judge in the province – should take Hlophe’s place?

But Hlophe has argued that Helen Zille could not possibly take up a seat on the JSC either as she has made certain statements about Hlophe which demonstrate a bias against Hlophe. If this is correct, can she designate anyone to sit on the JSC on her behalf? Surely she could not ask her husband or son to sit on the JSC on her behalf but perhaps the second most senior member of her cabinet could be asked to sit on the JSC, provided that he has not made any statements which illustrate a bias against Hlophe.

And what about Andiswa Ndoni, current former chairperson of the Black Lawyers Association and one of the six members who voted to stop any inquiry? Ndoni has said that Hlophe was a victim of of a racist conspiracy. Should she not have recused herself from the JSC at the meeting where the original decision was taken – like Adv Dumisa Ntsebeza so correctly did – because of her perceived bias in the matter?

Lastly, one may wonder whether this decision may influence the case of Freedom Under Law who is also challenging the decision of the JSC, but on more substantive grounds. If the JSC decides not to appeal the matter, would it still be necessary for FUL to go ahead with its court action? I suspect it would, as the FUL action is focused on the irrationality and illegality of the decision itself. A court order to the effect that the JSC has no legal power to abdicate its responsibility, that it is obliged to have a full hearing and to make a decision on who of Hlophe or the judges of the Constitutional Court are the pathological liars, would help the JSC to make the correct decision. All one wants is for a decision to be made, based on the facts.

The judge or judges who have been speaking the truth would surely welcome the opportunity to clear their names before a full inquiry. The judge or judges who have been lying will, of course, resist any attempt to come to the bottom of this matter. It would thus be interesting to see in the coming days how the various parties respond to the High Court judgment.

Urgently wanted: judicial training

Jan 11th, 2010
by Pierre De Vos.
104 comments

Many South African judges are notoriously prickly about the need to undergo further judicial education. Despite the fact that Parliament passed the South African Judicial Education Institute Act in 2008, the Institute has not yet trained any judges or aspirant judges and it is unclear when it will start its work in earnest. Yet most judges received their legal training before the advent of the new Constitution and there clearly is a need for further training of judicial officers to bring them up to speed with constitutional jurisprudence.

The recent High Court judgment of Hlophe JP in the case of Malachi v Cape Dance Academy and Others demonstrates the urgent need for further judicial training. Although the case was probably decided correctly, the judgment is shoddily written while the constitutional law arguments are confusing and lacking in a basic understanding of constitutional law jurisprudence.

In the case, the High Court declared invalid section 30(1) of the Magistrates Court Act and the common law rule it codified, which allows a judicial officer to order the arrest of a person when it is suspected that the person will flee in order to evade the payment of a debt. In this case Ms Tatania Malachi, an “exotic dancer” (yeah right) from that lovely country Moldova (found by some surveys to house the unhappiest citizens in the world) was arrested after she tried to return to Moldova without paying her employer R20 000 owed to him.

Given the fact that the Constitutional Court declared invalid section 65A-65M of the Magistrates Court Act which provided for the imprisonment of judgment debtors in certain circumstances, the order of invalidity will probably be confirmed by our highest court. It will be surprising, however, if the Constitutional Court endorses some of the unconvincing and badly reasoned “arguments” put forward by the High Court.

First, the High Court found that the rule violated the right to equality because the rule treats poor debtors who are unable to furnish adequate security differently from those who can furnish such security, as the former could be incarcerated while the latter will avoid incarceration. Unfortunately, the judgment inexplicably fails to refer to any Constitutional Court jurisprudence on the right to equality and fails to articulate and apply the tests set out by the Constitutional Court to determine whether an infringement of either section 9(1) or section 9(3) had occurred.

If section 30 is invalid because it infringed on section 9(1), a rationality test had to be applied – something the court did not do. If section 30 is invalid because it infringes on section 9(3), it must be shown that the discrimination was based on one of the grounds listed in section 9(3) (like race, sex, gender or sexual orientation)) or on an analogous ground not listed in section 9(3) (such as HIV status). The High Court judgment inexplicably fails to make clear on what ground the discrimination occurred and why different treatment based on one’s financial position or some other unnamed characteristic would constitute discrimination for the purposes of section 9(3).

The implications of this argument – as far as one can tell – is that any law that distinguishes between rich and poor will constitute discrimination on an analogous ground. If this argument were to be sustained it would call into question the very existence of the capitalist system in South Africa. Maybe this is not a bad thing, but then one would expect the judge at least to make a cogent argument in favor of his position.

If one of my students had written the section in the judgment on the infringement of section 9, he or she would probably be awarded a mark of about 25% for the question as it shows a complete lack of knowledge of the Constitutional Court equality jurisprudence or any appreciation for the consequences of the argument presented.

The High Court also found that the rule infringed on the right to dignity as it allows for an arbitrary deprivation of liberty and allows a defendant to be subjected to cruel and degrading treatment. The High Court unfortunately seems unaware that the Constitutional Court has stated that where another right gives effect to the demand for the respect of human dignity (in this case, section 12(1)((e), which prohibits cruel inhuman and degrading treatment) one should rely on that right and not on the right to human dignity.

In dealing with the application of the limitation clause, the High Court seems unaware that it had to apply a proportionality test, having to weigh up all the factors set out in section 36 of the Constitution to determine whether the limitation is justifiable in an open and democratic society based on human dignity, equality and freedom. Instead the High Court discussed each of the factors mentioned in section 36 separately and failed to weigh the factors up against each other as required by the Constitutional Court jurisprudence. This completely misses the point of section 36 analysis and demonstrates a rather weird lack of insight into a fundamental aspect of Bill of Rights adjudication.

The discussion on the limitation clause is also sloppy and repetitive: at some point the same point, using exactly the same phrase, is made in subsequent paragraphs of the judgment, suggesting that the judgment was not properly edited before it was handed down.

In this case, the lack of engagement with Constitutional Court jurisprudence and the lack of understanding about constitutional principles, did not affect the outcome of the case, as the High Court reached a more or less just outcome that will prevent poor people from facing arrest when they owe money and the person to whom money is owed fears that the debtor will flee the country. It could therefore be argued that no harm came of the ignorance of the particular judge and that justice was served.

But in a constitutional state based on the Rule of Law, the legitimacy of the judiciary and the respect for the legal precedent as annunciated by higher courts suffers when lower court judges ignore or completely misconstrue the law. In the long term this could undermine the independence of the judiciary and respect for the legal system. In more difficult cases such a disregard for the law could also adversely affect litigants who may turn away from the law to rely on arbitration or self-help, which would erode respect for the rule of law.

Given the fact that many judges feel insulted when one points out that none of us are perfect and that – like the rest of us – judges are never too old to learn something new about the law, it seems to me the newly established Judicial Training Institute has its work cut out for it. If it functions effectively, it will enhance the quality of judicial decisions and with it respect for and trust in the law and our courts. This, in turn, will enhance the prestige and respect enjoyed by judges themselves. Judges therefore have a vested interest in judicial training and should embrace the new institute and its work, rather than resist it.

Of course, in the long run this will also be good for especially poor and vulnerable South Africans who may rely on the law to ensure that they are not treated unfairly by the rich and powerful in our society.

Its all a matter of credibility

Oct 16th, 2009
by Pierre De Vos.
68 comments

Members of the Judicial Services Commission (JSC) who read the founding affidavit of Freedom Under Law (FUL) in their application to set aside the decision of the JSC not to properly investigate the complaint of gross misconduct against Judge President John Hlophe, would be hard pressed not to feel ashamed.

Whatever the legal merits of the case presented by FUL, the affidavit builds a strong case that the JSC’s decision was so absurd, irrational and  arbitrary that no reasonable person would have been able to make it. FUL contends that in an effort to avoid a situation where Judge President Hlophe (who has been caught out lying in the past) would have to face cross-examination, it decided – without affording the parties any of the procedural protections prescribed in the JSC’s own rules – that even though a prima facie case existed against Hlophe, the CC judges had not been able to prove during the “preliminary hearing” that Hlophe had unduly tried to influence them.

FUL’s affidavit – although it challenges the unlawfulness of the decision on relatively technical grounds – contains powerful pointers that goes to the substance of the complaint and when one reads it one gets the impression that FUL’s lawyers believe that the JSC should have made a credibility finding against Hlophe. FUL argues as follows in this regard;

In exercising [their] constitutional duty, [the JSC] must apply the law of evidence  regarding the resolution of conflicting factual versions. It is well-established that this requires a determination of the witnesses’ credibility, their reliability and probabilities. The JSC cannot abdicate this responisbility because the complianants and those against whom complaints are made are judges. If it were so, the power given to the JSC under section 177 and its rules would become meaningless whenever a judge denies a charge.

FUL points out that the JSC decision failed to consider crucial evidence which shows not only premeditation on the part of Hlophe, but supports a credibility finding in favour of Justice Nkabinde. It lists the following issues as pertinent:

  • There was a prior warning by Jaftha to Nkabinde that Hlophe was coming to talk to her;
  • There was supporting evidence of Justice Mokgoro and O’Regan (neither of whom testified at the second “preliminary hearing”) about what was said and what happened;
  • The fatal effect (both on credibility and the issue of pre-meditation) of the evidence that Justice Nkabinde had finished and circulated the note on priviledge before her conversation with Hlophe while Hlophe had claimed Nkabinde had said to him she was still busy working on that note;
  • The inconsistent media statements by Hlophe who had at first dismissed the complaint against him as “rubbish” and asked, rhetorically, how he in Cape Town could influence eleven judges sitting in Johannesburg. Hlophe at first did not admit that he had spoken to two judges of the CC about the Zuma matter, something that he later had to concede he did do by approaching each and talking to them in private in their chambers;
  • Hlophe had not provided a possible explanation why Justice Jaftha – a friend of many years – and Justice Nkabinde would manufacture the evidence which Hlophe disputes;

When Hlophe was challenged during his first interdict application to provide answers to the following questions he failed to do so:

  • does he allege that Nkabinde J is lying in her account of what happened;
  • does he allege that Jaftha AJ is also lying in his account of what happened;
  • does he allege that both Jaftha and Nkabinde allowed themselves to be coerced into making false statements against him;
  • does he allege that Jaftha and Nkabinde lied to their colleagues when, on various occasions, they conveyed what had happened between them and Hlophe to them;
  • does Hlophe allege that the other Judges of the CC have lied about what happened.

Instead Hlophe stated that these questions had to be determined at the JSC hearings. because there were no hearings, Hlophe never had to answer these pertinent questions that fatally undermines his credibility.

FUL seems to have a point. The fact that the JSC chose to believe some aspects of Hlophe’s version of events above that of Nkabinde looks in this context astounding and inexplicable. I think FUL has convinced me that no reasonable person with an open mind could possibly have come to such a decision.

Why the Rule of Law is not only important for the rich

Oct 12th, 2009
by Pierre De Vos.
9 comments

Justice Johan Kriegler has been vilified by some because his organisation, Freedom Under Law (FUL), decided to challenge the decision of the Judicial Services Commission not to investigate the charges against Judge President John Hlophe. Kriegler argued that it was necessary to take this action in order to defend the Rule of Law. If even a small bit of what is shown on the video below and alleged elsewhere by Abahlali baseMjondolo is true, it conclusively demonstrates why the defense of the Rule of Law is not a frolic to protect the rich and well heeled alone.

If members of the police take sides in local conflicts and if local politicians do not respect the law because they think that state institutions will not respect the law and will turn a blind eye to their lawlessness and criminality, social activism and political mobilisation – both essential for the thriving of democracy – will be snuffed out and our beautiful Constitution will not be worth the paper it is written on. Anyone who dares to oppose the whims of local power brokers and charlatans acting under the protection of local politicians will face the threat of violence or even death.

This is slightly more important, I suspect, than whether John Hlophe is a crook or whether the members of the JSC are unprincipled political hacks doing the bidding of the ANC. Watch this video and weep.

JSC, Minister doth protest too much

Oct 1st, 2009
by Pierre De Vos.
23 comments

When Justice Minister Jeff Radebe (that guy who masterminded the scandalous decision of the JSC not to investigate the complaints of gross misconduct against John Hlophe because it feared that a real investigation would have to lead to the impeachment of Hlophe) gave a speech yesterday at the farewell for five justices of the Constitutional Court, he sounded rather defensive.

Instead of mouthing warmhearted platitudes about our highest court – as one would have expected of a good politician – he spoke for fifteen minutes in defense of the JSC. He said the true test of the JSC’s character was that it was “fair, honest, and focused on providing the president with a cadre of justices from which he will make his decision”. The test was “not the accolades that arise as a consequence of whom they did not short-list as much as who they did”.

Of course the JSC did not embarrass itself with the compilation of the Constitutional Court short-list, but rather when it made an inexplicable decision to let John Hlophe off the hook and condoned lying by a judge.

No matter what the Minister says now, nothing can erase the fact that the JSC decided that it had nothing to do with it that a judge of one of our highest courts had lied under oath (and maybe that same judge had lied several other times to the media or under oath – that judge being John Hlophe, seemingly a pathological liar.

The fact that the Minister is now so defensive about the JSC suggests that he does have some shame and that he feels a bit embarrassed about the indefensible decision of the JSC. Maybe this is a good thing as it suggests the Minister of Justice  understands what is right and wrong, what is legally and constitutionally required and what cannot be justified – he just chose for expedient reasons not to do what is right and not to obey the Constitution.

That is marginally better than having a Minister of Justice who acts unlawfully and does not even recognise that his actions are scandalous. Maybe there is something to work with there. Maybe he can still be convinced that following the Constitution and the law is not optional and that condoning the lying ways of a judge in the long term will hurt us all.

If he does not and if he thinks it is perfectly fine that a leader of our judiciary continues on the bench despite the fact that he is a pathological liar and a skel, well, then god help us all.

Why John Hlophe will not be appointed

Sep 21st, 2009
by Pierre De Vos.
137 comments

I am going to stick my neck out and predict that Judge President John Hlophe will NOT be appointed to the Constitutional Court. There are, of course, many valid and cogent reasons why Judge President John Hlophe should not be appointed to the Constitutional Court. There are also many valid reasons for believing that independent of these factors Hlophe has no chance of being appointed.

We know that Hlophe is a liar. He claimed to have received only “out of pocket” expenses from Oasis when in fact he had received first R10 000 a month and later R12500 a month from them “for services rendered”. (No one has yet stated what services were indeed rendered for the almost R500 000 Hlophe received, but it looks like Oasis made a very bad investment there.) At the time he lied to the JSC – even after it came to light that he was receiving money from Oasis – stating that the amount was R10 000 a month when it was in fact by then R12500 a month.

As Zackie Achmat has now reminded us, Hlophe is also homophobic and hateful of people living with HIV. (See  below.) Given the fact that our Constitution prohibits discrimination on the basis of sexual orientation and has also been interpreted to prohibit discrimination against people living with HIV, this means Hlophe has not internalised the values at the heart of the constitutional enterprise.

We also know that Hlophe has an adventurous and innovative understanding of ethics and of conflicts of interest, one not shared by any lawyer I know, and perhaps not shared by any lawyer not practicing in Uzbekistan or North Korea. Newspaper reports state that at his JSC hearing Hlophe denied that he exposed himself to a conflict of interest when he made the decision to grant Oasis leave to sue a fellow judge despite the fact that he was on the pay role of  Oasis.

This is astonishing as even people who get all their information from Wikipedia would know that what happened in the Oasis matter was a conflict of interest. Wikipedia states:

A conflict of interest occurs when an individual or organization (such as a policeman, lawyer, insurance adjuster, politician, engineer, executive, director of a corporation, medical research scientist, physician, writer, editor, or any other entrusted individual or organization) has an interest that might compromise their actions. The presence of a conflict of interest is independent from the execution of impropriety.

Hlophe’s interest here was that small matter of having been paid R500 000. This might have compromised his decision to grant the company who paid him this money (which looks suspiciously like a bribe) leave to sue a fellow judge. The fact that Hlophe seems to disagree, is astonishing. This is even more so, given the fact that even the JSC at the time concluded that Hlophe had exposed himself to a conflict of interest.

We also know that President Jacob Zuma’s office has been spreading rumours that Zuma does not like Hlophe and that he has no chance of being appointed to the Constitutional Court. Although Hlophe clearly has his supporters in the ANC, the support does not seem to come from the top. Who wants to be associated with such an embarrassing man?

But this is not why I think Hlophe will not be appointed to the Constitutional Court. Instead, I believe that Hlophe will not be appointed because he is ruthless, will stab his “friends” in the back when it will advance his own interest and therefore cannot be trusted to do what is required. A wily politician like President Zuma must surely know this and will not be stupid enough to trust Hlophe.

A case in point is Hlophe’s statement to the JSC yesterday that he does not know Advocate Percy Gumbi of the Justice for Hlophe Alliance. Nor, so did Hlophe claim, did he know anything about or support the statements of the JFHA.

Gumbi had in the past confirmed that Hlophe sanctions their activities and Hlophe had signed a nomination acceptance form bearing the name and contact details of Gumbi and the alliance. The nomination document also at some point slips from the third person into the first person, suggesting that it was at least partly based on something Hlophe himself had written. But like that guy we are told about in the New Testament, Hlophe decided it was time to cut loose his “friends” and denied what seemed pretty impossible to deny.

Even if I was a fan of Hlophe (which I happen not to be) and even if I was a politician who hoped to appoint “sound” judges on the Constitutional Court who would make decisions that would benefit myself or my party (which I am not), I would not appoint Hlophe to the Constitutional Court. What might Hlophe do when the political winds shift and his interests demand something different from what one had in mind for him?

Only the most gullible among us would back the Hlophe appointment in the hope that he would act in a predictable manner to advance any particular cause (except of course the cause of Hlophe himself).

Besides, Hlophe is Judge President of the Cape High Court in the province run by Helen Zille’s DA. Better to keep him there to ensure the court in the opposition-run province remains dysfunctional and deeply divided. Would serve those bloody voters right who had the cheek not to vote for the ANC.

On silence, patronising interventions and the duty to speak out

Sep 15th, 2009
by Pierre De Vos.
254 comments

Ken Owen, the sharp-tongued commentator who used to edit the Sunday Times, has been having a fascinating argument about the Hlophe debacle with various other white commentators in the pages of Business Day. His argument is essentially that white people should shut up about the raping of the Rule of Law by the JSC, because if they do not, their self-important bleating will provide cover for the charlatans and self-serving crooks who will use “racial solidarity” to whip black lawyers and politicians into “line”.

In the latest salvo he takes on Jonny Steinberg and George Devenish, who previously argued that whites should not act like second class citizens and that whites therefore have a right and a duty to speak out about injustice and the abuse of power. When white people say nothing and do nothing we might well end up like Zimbabwe. Owen responds:

Mr Steinberg attributes the implosion of Zimbabwe to the “arrangement” by which whites kept clear of politics. Prof Devenish similarly assumes that the battle for the constitution must be lost if no white bwana comes to the rescue. Both cast their arguments in a macho idiom that reminds me of the ambassador in Andre Brink’s early novel: “Ek is ’n boere-diplomaat, ek neuk my pad oop”.

Perhaps we should open the debate on racism that so many people are demanding. I start with Malcolm X and Steve Biko, both of whom said in slightly different words: Black man, get on your feet! Certainly it is time to shed the idea that black people can only be successful (or prosperous, or happy, or free, or brave) if whites do something, or refrain from doing something. If we are to make progress, we must put responsibility where it belongs: Zimbabwe is not a failed state because whites avoided involvement in politics, but because President Robert Mugabe and the ruling Zanu (PF) ruined it.

SA’s judiciary will not be rescued if Judge Johann Kriegler pursues his case, nor will it be doomed if he abandons it. The threat to the rule of law comes from black lawyers who are hustling for jobs, status and power in the name of “transformation”, and they can best be stopped if other black lawyers force them to face up to their responsibility and to the consequences of their rampant ambition. Given our history, whites are wise to avoid preaching to them.

The apartheid mindset, which casts blacks as forever victims and whites as forever missionaries is as pernicious as it is tiresome. I recently heard a man blaming baby rapes on “colonialism”, which makes as much sense as blaming a tiny white minority for the rape of Zimbabwe, or making Judge Kriegler responsible for the current rape of the rule of law.

Judge Kriegler tells me there are many excellent black lawyers who share his concerns. If so, where the hell are they? They don’t need Judge Kriegler to nanny them. At most, Judge Kriegler should listen to them carefully, follow their lead, and discreetly give what support they want. Instead, by prominently seizing the issue, he has made them vulnerable to the charge of being Uncle Toms, and they have all scuttled off into the underbrush. Racial solidarity has trumped all else.

Nobody doubts Judge Kriegler’s courage but whether he is wise to go charging at windmills is another matter, even if he has a couple of Sancho Panzas like Mr Steinberg and Prof Devenish bringing up his rear. The only useful question to ask is whether black lawyers want the rule of law and are prepared to fight for it; if not, there is nothing Judge Kriegler can do about it.

Some of Owen’s views are confirmed by the remarkable piece published by Ngoako Ramatlhodi in the Sunday Times on Sunday, where he writes with a certain (unwitting?) candour about why the Hlophe scandal is being swept under the carpet:

In this matter Judge Kriegler seeks to compel the JSC to conduct a public interrogation of all the judges involved, including the outgoing chief justice. All of them were appointed to the bench post-1994. In that eventuality, there is bound to be public wrestling among the most senior black jurists in the country, as each side will seek to prove the other to be less forthcoming with the truth. The opponents of transformation will then bask in glory as the self prophecy of “untrustworthiness” is fulfilled. Some will then say: “We told you that blacks cannot be trusted with the judiciary.”

What Ramatlhodi seems to say is that cross examination of the complainants cannot be allowed because it might well expose one or more (black) judges as liars and this will confirm the racial prejudices of some whites about black people. This statement is remarkable – especially in the week that we commemorate the death of Steve Biko – because it amounts to an admission by Ramatlhodi that his beliefs and actions are wholly determined by whites. There is no agency there. Only actions determined by a fear of what some white people might think and say. One always acts in response to white racism – never in an  independent, proud, strong, or principled way, but always shackled to fears about what whites may say and do and thus imprisoned by white racism.

This is a terribly depressing and defeatist admission to make. It seems to me like the admission of someone who has internalised the racist bigotry of white South Africa, someone whose mind is not free, someone who should read more Biko and less Mbeki. But it also reminds us of where we come from and how apartheid prejudices and race hatred have been internalised by people like Ramathlodi.

In this context, Owen is obviously correct when he says whites should not act as if they and they alone can save our society. That would be terribly arrogant and, yes, racist. I agree with him that some whites act as if black people can only be successful if whites do something or refrain from doing something. Clearly that attitude, which is rife in our society, is deeply insulting and racist.

Where I depart ways with Owen is where he says that his view means whites must shut up completely about what happens politically and legally in South Africa. That seems to me just as patronising as the actions of Kriegler, because if one does that and say, well let black people either save us or ruin us on their own, one in effect holds black people to a lower standard than whites. If one is prepared to speak out about the stupidities, corruption and greed of whites, why let black people off the hook? 

The trick, I think, is to speak out boldly and fearlessly about the injustice, abuse of power and general stupidity and arrogance of South Africans of all races (not selectively only of black South Africans!), without acting as if one thinks one is the saviour of (black) South Africans. If one speaks out one must remember that one is just one small voice among many voices of all races trying to make a small difference in an honest, non-patronising way.

If I speak out, it is decidedly not because I believe only whites have a monopoly on what is right and principled and that only whites can save our judiciary and our country from the greedy crooks of all races sitting in (often untransformed) board rooms, parastatals and in government. It is because I think it is profoundly patronising and deeply insulting to hold black people to a lower standard than whites (like Ramatlhodhi wants to do) merely because some white people might mistake criticism of black people for a confirmation of their racist views.

Stuff those racist whites, I say. Why should my or anyone else’s actions be determined by such racist bastards? Why give them all the power?

It is also because I believe in the Constitution and the values and rights enshrined in it, which confirms that I am not a second class citizen because of my race, gender, sexual orientation, health or other status. Why would I shut up just because self-hating black people like Ramatlhodi and Paul Ngobeni say I should because they have not themselves freed their minds of white racism?

How to defend the indefensible

Sep 11th, 2009
by Pierre De Vos.
115 comments

This morning I unexpectedly found myself on E-TV, once again debating Mr Paul Ngobeni. (The producers failed to inform me of Mr Ngobeni’s presence.) The topic was – once again – whether it was wise to launch a legal challenge  against the Judicial Services Commission (JSC) decision not to investigate the complaints by John Hlophe and the judges of the Constitutional Court against each another.

Mr Ngobeni, predictably, argued that challenging the decision was racist. 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.

I really do not want to rehash the substantive arguments here. Most people who follow the news have made up their minds on this issue. This has become such a charged issue that it now has far less to do with logic and reason than with emotion, fear and hatred (which, can of course, also be logical).

Rather, I propose to take Mr Ngobeni’s charge seriously. After all, I always argue for reasoned and honest reflection and debate, so should I not honestly and calmly consider the possibility that Mr Ngobeni has a point? Logic, reason and the law aside, could it perhaps be that those of us who believe that the JSC erred in not conducting a full hearing where all the witnesses are cross-examined, are animated by racism?

Let us start with the strongest argument proffered by Mr Ngobeni, namely that  those of us who question the  legal basis of the decision by the JSC to sweep the matter under the carpet are guilty of a profound racist double-standard. We, so the argument goes, hold black people in public life to a far higher standard than we hold white people in public life. For example, why have we not made a bigger hullabaloo about magistrate Johan Herselman, who was recently found guilty of hate speech for calling Khayalethu Geleba a baboon?

It would, of course, be tempting to dismiss this argument by pointing out that the actions of an ordinary magistrate – no matter how disgusting such actions might be – are, in the bigger scheme of things, far less important for our judiciary and our constitutional state, than the actions of a Judge President and the judges of the Constitutional Court.  Magistrates have no power to declare invalid the actions of the executive or the legislature, while a Judge President and the judges of the Constitutional Court  do.

To my mind, this argument could be open to challenge. Most South Africans who get into contact with the legal system do so at the level of the magistracy, so the shocking racism of a magistrate could have a profound effect on the daily lives of ordinary South Africans. Should we not make a bigger stink about the actions of such a magistrate exactly because his actions will potentially affect the lives of ordinary people in a much more immediate way than the decisions of the Constitutional Court ever will?

I am therefore ready to concede that it is not unreasonable to argue that the obsessive focus by the media and commentators like myself on John Hlophe and the Constitutional Court – to the exclusion of other issues – might in part be explained by a double standard. Moreover, I have often written about the phenomenon – informed by implicit but unexamined racism – of some white people holding black people to a higher standard than they do fellow whites.  In many organisations still dominated by white South Africans, new black appointees find that they have to “prove” their competence while the competence of new white staff are assumed.

It is therefore understandable that many people would be suspicious of any action which – if successful – might expose a black judge (or more than one black judge) to a finding of gross misconduct. I would therefore further concede that it might well be that some people clamouring for a full hearing of the various complaints by Hlophe and the Constitutional Court judges, are animated by racism.

However, in my opinion, Mr Ngobeni’s argument falters when he uses the above to try and discredit anyone who insists that the JSC acted unlawfully when it made its decision or anyone who wishes to see the various complaints properly dealt with on the basis that they must be racist.

First, the two judges on the JSC both voted with the minority to have a full hearing of the complaints of both Hlophe and the Constitutional Court judges. As judges, they must surely be the individuals on the JSC best placed to make a legal finding on this matter and their opinion should be accorded some weight. Both these judges happen to be black. Is it really plausible to argue that they were animated by racism?

Second, even if we agree that racism has motivated some to challenge the decision of the JSC, this does not take us any further when considering the merits of the case. If a legal decision is wrongly taken, that decision cannot miraculously become lawful because some people who point out the legal flaws in the decision happen to be animated by ulterior motives.

An example: Say a building is on fire and an employee – who wishes to harm his bosses and to knock off early so that he can go home to watch the Bafana-Bafana game on TV – alerts everyone to the fire, the ulterior motive of the employee will not change the fact that the building is on fire. If nothing is done and the employee’s alert is ignored, everyone in the building will be killed. Facts do not change because they are pointed out by someone with an ulterior purpose.

Of course, it might be argued that there might be no fire at all and the employee may have made up the story of the fire for an ulterior purpose. But to know that, it would be necessary for someone to go and check whether there is a fire or not.  Similarly, there might be nothing wrong with the legality of the JSC decision (although no credible lawyer has made such an argument), but to establish this fact, it would be necessary to have the decision reviewed. To insist that the decision should be reviewed can therefore not with certainty be said to be animated by racism.

This leads us necessarily to the conclusion that those who argue that the JSC decision should not be reviewed and that anyone who expresses criticism of the decision of the JSC is racist, is attempting to stop any effort to establish the legality of the JSC decision and of getting to the truth. If one shouts “racism”, one does not have to engage with the legality of the JSC decision (or the fact that either Hlophe or the judges of the Constitutional Court lied under oath) and one need not engage with the real issues.

The allegations of racism against those who criticise the JSC decision therefore provides strong evidence that those who wish to sweep this whole saga under the carpet knows that the JSC decision cannot be defended on legal grounds and suspects that cross-examination will be potentially disastrous for the person(s) whom they support. It is tantamount to an admission that the JSC decision is indefensible – on legal grounds at least – and that the individual(s) they support lied.

A more honest argument – made by some readers of this Blog – is to admit that the JSC decision is not really defensible on legal grounds, but to argue on purely pragmatic grounds that it should not be attacked. “We know the JSC made a decision that is stupid and harmful, but more harm will be done by saying so because it will further fan the flames  and destabilise the judiciary.”

I disagree with this argument, but at least it is honest. To extend my metaphor I would say: “If we do not send someone to check whether there is a fire or not and continue with our work, we might all burn to death. Rather be on the safe side. Surely we do not all want to die?”

Mowbray, Kaap IS scary – if you are black

Sep 7th, 2009
by Pierre De Vos.
77 comments

Much has been said about the decision by the Canadian Refugee Board to grant refugee status to ex  water sprinkler salesman, Brandon Huntley. But I think I might have another question to ask about this sorry affair. Would the Refugee Board have come to the decision it did if it allowed for a full hearing with an array of witnesses from the South African government? Would it have made a difference if all witnesses were subjected to cross examination by Senior Council?

In other words, I am wondering whether those who applauded the utterly irrational decision of the JSC to drop the charges against John Hlophe and the Constitutional Court, would not have had a different view if the decision was not about Hlophe but about Huntley? Can it be that the Canadian Refugee Board and the JSC have more in common than some would like to admit?

If the answer is yes, would the same people who are (rightly) cheering on the review of the irrational decision of the Canadian Refugee Board also throw their weight behind the decision of FUL to review the JSC decision? Being principled and consistent, I am sure they all will.

Last year I visited Montreal in Canada, a pleasant enough place with wide streets, a good public transport system and a thriving gay village. The newspapers were dreadfully boring, the people friendly and open, but the society somehow lacked the edge and vibrancy of Johannesburg, Cape Town, Dakar, Kampala or Cairo. I guess if you are a not-too-bright white-boy-slacker from Mowbray in Cape Town, living in Canada must seem like a heavenly experience – a bit like being Judge President of the Cape High Court.

No wonder old Huntley tried to pull the wool over the eyes of those gullible Refugee Board members.

Canadian law states that one can be granted refugee status if one has a well-founded fear of being persecuted in your home country because of your race, religion, nationality, membership in a particular social group, or political opinion and you cannot return or do not want to return to your country because of your fear and the conditions there.

To be a person in need of protection, you must be someone who, if you had to return to your home country, would more likely than not face: torture, a risk to your life, or a risk of cruel and unusual treatment or punishment. And if you face a risk to your life, or a risk of cruel and unusual treatment or punishment, you must show all of the following: You are not able to get protection from the government in your country.  The risk affects you personally, and is not faced generally by other people in your country. For example, the risk is not the result of a famine or civil war.  The risk is not the result of government laws, such as punishment for committing a crime, unless these laws violate international standards. The risk is not caused by the fact that you cannot get adequate medical care in your country.

To be granted refugee status in Canada you also need to show that there is no place in your country where you would be able to go and be safe from persecution or from the risk that you face. It is up to you to convince the IRB that you are a Convention refugee or a person in need of protection. You do this by telling your story to the IRB and providing any documents that support your case. For example, you might provide identity documents, police reports, medical records, or other documents that help show that your story is true. You might also provide documents, such as human rights reports or newspapers, that show what is happening in your country.

But apparently there is no need for a full hearing with cross examination and no opportunity for anyone from your home country to provide evidence that might contradict your story.

Huntley is therefore very lucky. Imagine the Refugee Board had to have a full hearing and the South African government could present evidence – tested under cross examination – about the situation in South Africa. Hell, the South African government could merely have asked a representative of Pam Golding Properties to go and testify on their behalf. Onthe Pam Golding’s website, Huntley’s old suburd is described as follows:

Mowbray is known for its convenient locality to all of Cape Town’s amenities, particularly exclusive schools, the University of Cape Town, the world-famous Groote Schuur Hospital and sporting facilities, such as the Rondebosch Golf Course and Newlands Rugby and Cricket grounds. Boasting large family homes, when you buy a house in the Southern Suburbs, you are not only buying a home, but rather a lifestyle of carefree independence for your children.

This fascinating historical suburb stretches from Mostert’s Mill, which was built on the farm Welgelegen in about 1796, to the Rondebosch Common and is situated between the N2 highway and Rosebank. There are at least three historic homes; Westoe, Moolenvleit and Koornhoop situated along the Liesbeek River and these are all well maintained. Mowbray has a real mix of cultures from the thriving African marketing around the taxi/bus interchange to the quiet residential areas of Little Mowbray, the Village and Upper Mowbray.

One should know a decision is irrational when the promotional material of an estate agent sounds more plausible than the findings you have come to. A bit like the JSC really. As someone who used to live in Mowbray I am obviously incensed by the Canadian Refugee Board decision. After all, Mowbray can be scary – but usually only when you do not like private schools, do not play golf or happen to be black.

Of course, consistency and principle are not the strong points of those who wish to sweep the Hlophe saga under the carpet. What a pity that is.

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