Judge President John Hlophe will probably return to work on Monday before jetting off to Johannesburg at the end of the week to be interviewed for a position on the Constitutional Court. The media will focus heavily on his interview because the Judge President is the story that will sell newspapers. The suspense! The drama! The liberal (newspaper buying public’s) outrage! Will he or won’t he make it on to the list of JSC nominees sent to the President for appointment, they will ask.
To some degree this is inevitable, given the fact that for many different reasons (some sound, some deeply problematic) Judge President Hlophe excites passions in our fractured body politic that makes for great drama and suspense.
I am, of course, one of the individuals who feel that Hlophe is not fit for judicial service on any court (let alone the Constitutional Court) and have set out my extensive and cogent reasons for this on many occasions. I am, of course, also aware that not everyone shares my view.
There are individuals on both sides of this debate who seem to have a messianic obsession with Hlophe (some would say I am one of them).
On the one hand there are those who have formed the firm belief (without providing the necessary evidence) that Hlophe is a victim of a racist conspiracy (by the black judges of the Constitutional Court) and that he should be appointed to the Highest Court because he is allegedly a champion of (racial) transformation, is allegedly a person deeply concerned about the plight of poor and marginalised South Africans (like the Joe Slovo settlers he ordered moved from their homes), a person with a brilliant legal mind (if a rather vague understanding of ethics and honesty).
On the other hand, some individuals (without even always realising it) see Hlophe as a symbol of what is wrong with ANC governance in South Africa (with which some of them mean black-led governance) and view the way in which the JSC has now twice let Hlophe off the hook for conduct that might well have constituted “gross misconduct” (although we will now never know for certain) as a scandalous abdication of their legal and ethical obligations and an ominous sign of how our institutions have become infected with what Minister of Higher Education and SACP leader Blade Nzimande last week called a “narrow Africanist chauvinism”.
If one happens to have been born with less melanin than fellow countrymen and women and one happens to agree with Nzimande (as I do) about the dangers of “African chauvinism”, it is rather difficult to express such an opinion, exactly because one would be grouped with the racists who yearn for the return of the “good old days of apartheid” and who see John Hlophe as a symbol of black incompetence and corruption.
This reminds us that for most South Africans (of all races) there can only ever be two sides to a story: the ”white” side and the “black” side. Escaping that dichotomous logic seems rather difficult if not impossible to do. How do we escape this narrow and stultifying ”them” and “us” world, a world of hatred and fear, envy and arrogance, conspiracies and plots?
This might come as a surprise to some readers, but I have come to wonder whether one way of trying to get beyond this corrosive, race-bating, stupidity, is not to shrug it off and laugh about it before moving on to real issues confronting ordinary South Africans. How many poor people who are worried whether they will have food on the table tonight, actually care about John Hlophe and the fools on the JSC?
I am not saying that the question of who serves on the Constitutional Court does not indirectly affect poor people. Of course it does. So, by all means, let us talk about the qualities we think a person should possess to serve with distinction on our highest court. Let us put forward names of highly qualified, progressive individuals with impeccable integrity who may just make a small difference to the lives of ordinary South Africans.
But it would, perhaps, be wiser not to bestow legitimacy on either the “Africanist chauvinists” or the racists by focusing on the candidacy of one man: John Hlophe. There are four openings on the Constitutional Court and it is important that these openings are filled by progressive judges.
In this debate about who is progressive, who cares about the poor, who has integrity and wisdom, John Hlophe is an unwelcome side-show. If we look at the bigger picture, we must surely acknowledge that he really is not that important: just one tragic and deeply flawed guy whose struggles have allowed us to be side-tracked and to take our eye off the ball.
What happens now is that you can concede defeat.You and your sore losers lost in your attempt to remove Hlophe JP…he remains Hlophe JP…in the Cape!
Pierre, three comments:
1. Your remarks smack somewhat of someone who, having been defeated, attempt to minimise the gravity thereof by proclaiming post facto that the whole brouhaha was somewhat besides the point. If the changes against Hlophe JP are true — and I am not saying they are — one cannot “laugh the matter” off. For one thing, the exoneration threatens the legitimacy of CC. (See my pt 3 below.)
2. You are absolutely right in saying that there are racists and reactionaries who savoured the saga as advancing their pernicious agenda. That being said, I think it is dangerous to imply a kind of moral equivalence, as if the HLOPHEPHOBES had racist allies rendered their cause as dubious as the racial chauvanists and minority-bashers on other side of this conflict.
3. It may be somewhat an understatement to say that who sits in Braamfontein only “indirectly” bears on the plight of the poor. If it is true, as you have sometimes suggested, that the other arms of government have been hi-jacked by a coalition of big-business interests and an emergent comprador elite, then the CC may be one of the last bastions against the subversion of the egalitarian values of the Constitution.
Anything happening with the defamation case against Hlophe? brought by Professor Winston Nagan’s
Michael, as you might know I think the decision is an utter disaster, a calamity and an outrage. My post really muses about how one should strategically deal with this. Is an expression of moral outrage always the best way to go about this? Maybe. But maybe not. Maybe we should think strategically about how we can act to minimise the effects of this deeply cynical abuse of power by the JSC.
Of course, there is a logical absurdity in the argument used by many of Hlophe’s supporters that those who are pointing out that what Hlophe has done is deeply problematic are part of a racist gang. Even if it was true (which it not always is), it would not hold water because a bad motive does not make the behaviour complained of less obnoxious. My point was not to suggest there is some moral equivalence – merely that the political terrain is tricky because the motives of parties involved differ.
we are a deeply polarized nation S.A, it would Prof. you look at our political parties trying hard to position themselves to pull anyone in but cant ..sadly for COPE,DA&ID we still stay in mostly polarized locations
When a comment is made we look at who it comes from instead of the context & content we need to learn to not play the person but the ball
that makes Joseph point out of line as facts dictate that the Cape Hlophe J.P is a deeply flawed man irrespective of his race
Well, Prof, just like we have find it in within our hearts to live with the dropping of the JZ case and its aggravating circumstances for which the perpetrators within NIA and the NPA will never be prosecuted; the arrogant show of who is in power in the release of Shabir Shaik, just to mention a few, we will have to do the same with the recent disgusting finding of the JSC on Hlophe.
Just like we are accepting JZ as our state president, we will one day have to accept Hlophe JP as our CJ, (as I believe Hlophe will soon be our CJ) irrespective of how corrosive to our democratic principles and judicial institutions and its officers their ascendance to these high positions in our land have been.
Based on the above, Prof, we cannot therefore claim that Hlophe is not “important” in the equation. If this man is going to be appointed into the CC, he will soon be (inasmuch as he would still be even if he is not part of the CC – remember what JZ said in response to the complaints against his “appointment” / nomination of Ngcobo, that there is nothing in the constitution that says he cannot appoint anyone other than the deputy CJ including the outsider) elevated to the CJ which will means any case against the interests of the current ANC and JZ in particular will be prosecuted in the manner that ensures the cockroach looses out. That will be bad not only for our judiciary but mostly for the whole country as it is now. This conclusion can be drawn from his alleged interferences with the two judges of the CC and recent media statements which he, as usual, disputes.
But isn’t it simply “transformation”?
Because of transformation of the JSC such a decision could be reached.
And a person like Hlope needs to be on the CC bench for the sake of this “transformation”. So this decision is a triumph for, and in the direction of, transformation.
Spot on Henri – now we know what that much uttered but not well understood terms means. – “The excusing of and the elevation of the morally reprehensible to positions requiring just the opposite candidate for politico-racial reasons”
Shock Denial Anger Sadness Acceptance
I did not think that with this case you’d get to the last phase that fast Pierre.
If you look at what has happened to the cherished ideals of a non racial democracy based on the rule of law and social justice you see the work of the hyper-inflation of expectations. Expectations of what we want our society to be and what is acceptable behavior is at rock bottom and still falling.
Understandably so, because to keep expectations high might mean having to stare some other ugly monsters in the face.
what is going to happen,
Prof is that South Africa is going to have (at least) one Judge (either Hlophe, Bessie or Jafta) that is going to continue on the bench despite having lied, grossly. (the JSC said if the culprit is to be found, the cunduct would amount to gross misconduct).
To some South Africans, that is not a problem.
My view was not to expose Hlophe, but to expose a liar, who possibly could be any of the abovementioned Judges so that our Judiciary can retain only the ones who do not have a cloud of lies over their shoulders.
For, it is also a fact that, at least one of the Jadges lied, they(both sides) cant be both right.
… this has little to do with the people of South Africa and the transformation of the judiciary (whatever that means); but a lot to do with Zuma making sure that his corruption case will never ever be resurrected as long as he is the President of the country.
Those who don’t see the spirit and the mind of a dictator in Zuma, will wake up only too late.
The way forward is for white people (who will be unfortunate to come before Hlophe) to be afraid. Be very afraid. Of course, by white people, I also mean those who are white in the eyes of Hlophe; such people as Moseneke and all the so-called third-termers…
I am glad Prof that you have come to realise that we have more important issues to deal with in our country. Courts, JSC and their processes are not always the best tools to decide what is best for all aspects of our lives. They are easily manipulated by big businesses and the elite to further their interest at the expense of the poor majority. The celebrations by certain quaters when judgements are in their favour and the condemination by the same group when things do not go their way will be with us for a long time. There is something wrong with our judiciary if a man can be sentence for six months for stealing bread and a director of Tiger Brand is given a light sentence for denying millions of our people bread. Zuma signed a law this weekend and already we have headlines that are unsavoury. Again courts will be used to either delay the implementation or prolonged the benefits of this bill. Courts have been used and abused against regulators by business to sabotage many progressive regulations that benefit customers and general public against big business. To selectively use them to preserve or protect special interest will lead to a culture of “some are more equal than others.”
Apartheid was implemented and endorsed via these courts and it will be naive for us to believe that they are completely transformed. Their reputation in the new SA is yet to be positively recognised. Our masses are facing magistrates who continously make questionable judgements and our laws are yet to reflect our aspirations as African.
This independence, supremacy, Roman Dutch law of the judiciary might be received warmly in other parts of the world. The old order and their new found advocates must release this institution back to the people. We need a total transformation of this intitution and the constitution which were founded on a negotiated settlement.
We can have the best team on the bench but that will not solve our problems. We must eliminate greed, selfishness, racism and other unwanted behaviours in our society or else we will not be different from any other African country.
Spot on Tony in Virginia. It is unfortunate the majority of people still do not see all these things in that way. They see them in isolation from the broader political agenda led by JZ and his cronies. They are blinded by the good sweat talk that JZ and his ilk have mastered and are dishing out to the poor while turning a blind eye on his deeds which are the opposite of the Mandela he would like to emulate and the people’s president he would like to be.
They cannot indeed see the cocktail spirit and the mind of an Idi Amin and Mugabe of a special kind in him; and by the time they come to realize this it will be far too late to correct the situation.
Now,now guys you might want to start a We lost the Hlophe campaign comfort/whingeing club.Here’s a link that might help you deal with this grief and buy Pierre a whole lot of tissue or toilet paper!
http://www.ehow.com/how_2172308_be-good-loser-anything.html
Henri and Spolier, you are quite correct. This is transformation of a special kind. The one that takes us as a nation back to the vista of years when any (aborted) democratic and non-democratic practice that elevated the interests of the few at the expense of the million majority was an abhorrent to the liberation ANC movement.
I like the points made by Lebogang and Gwebecimele: the saddest part of all of this is that the ANC is still fighting the old battles–it has not yet realized that the issue is not getting its people in place in order to benefit from their victory(for there is nothing out there that is in any way competitive with the ANC), but rather that they need to preserve what they have won. To use an analogy, the ANC is more interested in fighting over how to split the pie (and who get which pieces) as opposed to trying to preserve and grow the pie.
If you want to grow a country, you need most importantly quality institutions like courts and police and laws and government agencies, etc. It is far more important to have good people in those positions than to have politically reliable people in those positions. The old game of cronyism and graft and nepotism were certainly not invented by the ANC (the NP were masters of this after all), but the ANC will be no more successful than the NP by playing that same game. It is a losers game, and it is a shame that the ANC is unable to see that. A shame for all of South Africa.
Here is a fascinating view of the situation, from the BBC.
http://news.bbc.co.uk/2/hi/africa/8047628.stm
Is it really all the fault of the intelligence agencies?
Joseph, it seems you do not understand how important it is to ensure that we have a judiciary which (a) enjoys independence and (b) which inspires the public’s confidence. Actually, given your misguided determination of the dictates of justice here, I wonder whether you understand why we need an independent prosecutorial service.
A revered judiciary can achieve important things. And it is painfully clear that the majority of the JSC has let everyone down insofar as it has failed to promote the preservation of whatever trust the public presently places in the courts. If you are interested, I would be happy to offer my fairly limited knowledge about what the Israeli Supreme Court was able to achieve chiefly because it was a revered institution -and quite rightly so.
To me (and to many other also)it is a great pity that traitors to our constitutional democracy such as the JSC majority cannot allow our judiciary to continue to aspire to greatness.
At times, I feel the same and that is when I want to join the Landless People’s Movement and Dale McKinley. But then I revert to thinking that the elite will always squash any revolutionary, broad-based, egalitarian movement, and I revert to gradualism. And it is here that the Hlophe case matters: he stands for a newly empowered, self-serving class who confuses their own advancement and aggrandizement with the well-being of the people. He is not alone. In all sectors of society we battle with this attitude, and if we cannot maintain elites that still care for the common good and adhere to certain ideals and moral values, beyond their own advancement, we will fail as a democracy.
Prof
I refer to the order of the Concourt in the Nyathi case, a link to which is provided below. What is the purpose of (e) and (f)? Does our Court not have what it takes to stand up to the Executive?
http://41.208.61.234/uhtbin/cgisirsi/20090831140320/SIRSI/0/520/O1-CCT53-09
http://www.fin24.com/articles/default/display_article.aspx?Channel=Opinion_Home&ArticleId=1518-2387-2465_2551010&IsColumnistStory=True
Prof, with respect, there must be outrage, even if it yields no discernable result, as with the Shaik parole and the dropping of the Zuma charges. I say this because if people just shrug their shoulders and mutter “Well, this is only to be expected in South Africa” and go back to their little lives each time a decision like this is taken, it gives a little more rope to the powers that be to hang this country on their narcissistic megalomanical greed and paranoia.
Yes, it does feel like trying to stop a tsunami by throwing sponges, but something must be done to make these people who were elected to SERVE us aware that even though they may think they can get away with things like this, there are those who will not let it rest – the story will be told and the world will know. It will be slow and frustrating for a long time, but eventually momentum will gain.
Apartheid was not ended in a week, and sadly this rampant pillaging of the very institutions and peoples the ANC government so piously swears they respect and serve will continue for a while to come, as the new “big men” of Africa line their pockets of their expensive suits with the spoils of corrupt tenders, nepotism and discriminatory policies. But there will come a day again, like a few years back, when they realise that they cannot continue, the people will not stand for it.
The day we as South Africans resign ourselves to what is perceived as inevitable incompetence, corruption and political patronage in government is the day that we give birth to the next African dictator (whoever he may be at the time). We must always focus on the tasks at hand in terms of service delivery, and uppliftment of the poor, and equal opportunities, but we must do so while keeping an eye on those elected to serve us as well – otherwise we may as well take the Constitution and throw it in the fire, before it gets bastardised and raped to suit a few greedy politicians who are left to run amok unchecked.
Pierre, only the most gullible reader would buy your new Hlophe is irrelevant line.You and others have made toppling Hlophe one of your top priorities in the past year.Now he’s irrelevant?A man who may ascend to the office of chief justice is now a footnote!?Yeah right.The decision of the JSC in this matter is a decisive and ringing vindication of the position that I have taken over the past 15 months. Opponents of John Hlophe let emotions cloud their judgments and it was a curiosity that during this episode well-trained lawyers suffered from temporary amnesia of the fundamental principles of natural justice(such as fairness and hearing the other side) on which this constitutional dispensation is partly based. The fact that you do not like someone or that they are controversial does not result in a stacking up of evidence against them. Justice is not done when it has outcomes that favour our own private prejudices. It is done when it conforms to the principles of natural justice, due process and the constitution. The JSC has engaged in an act of solomonic wisdom. It has staved off a constitutional crisis and this is an embodiment of the conciliatory values found in South Africa’s constitution. Did people want the JSC to manufacture stronger evidence? We have insisted that this was a he-said, she-said affair and cross-examination in this case would not have established otherwise. Even more profound and critical in informing the decision is that the judges who were allegedly approached could not come out decisively and say that indeed they were asked to make a particular decision. Actually Jafta JA in particular dithered.An inference is just that, an inference. No amount of wishful thinking can make it something else. For justice to be seen to be done it does not necessarily result in a rosy aroma for both sides. It is true that the sad conclusion is that a judge or some judges are liars but it was never going to be proved which one. The JSC has asserted that this country does not subscribe or yield to mob justice, vigilantism or the politics of fear.
Kevin, thank you for your posting. It is valuable to have a lawyer defend the JSC decision on this forum. For whatever reason, it appears that most contributors have sided with the minority.
I have two questions to put to you:
1. Not one of the judges on the panel voted with the majority. Is this merely a coincidence?
2. The majority ruled that the JP should not be subject to cross examination, inter alia, because it would be “naïve” to expect that he would budge from his position in direct examination. I finds this a peculiar argument:
2.1 I am no expert on evidence, but I had always though that it is precisely when one faces a he-said/she-said situation that cross-examination is MOST appropriate, to resolve their difference where there is seemingly no other way of doing so.
2.2 In a spirit of realism, one may anticipate that a determined, intelligent and self-confident witness willl stick doggedly to his story, But surely it is only fair to give the prosecution an opportunity to try to shake the witnesses ‘ credibility, seek out contradictions, etc. The prosecution cross-examines such a witness at its peril; putting such a witness in the box may backfire. But surely fairness demands that the prosecution be give a chance to kill its own case?
2.3 I would be most curious to know if there is authority to the effect that the fact that a witness seems very likely to stick to his story is good reason not to permit cross examination. I am not saying that one should slavishly stick to precedent. One may, in a spirit of transformation, wish to challenge well-established rules of evidence. Still, when one does so, it is helpful to acknowledge openly that one is deviating from the ordinary way of doing things, and attempt to articulate a principled basis for doing so.
I look forward to your insights on these questions.
Good questions there Michael.
I also want to know Sifiso’s take on the warning Jafta gave Nkabinde about an impending visit by Hlophe.
Kevin, with all respect, I would like to underscore a point which Michael has raised: often the principal object of cross-examination is to test the witness’s credibility. And moreover, just because a party to a dispute refuses to budge before being cross-examined does not mean that the witness’s version is true.
In the Steve Biko inquest, Sydney Kentridge SC (as he then was) was able to establish the unlawful death of Biko under difficult circumstances – and he did so by way of cross-examination.
By raising the instance of Kentridge’s famous performance, I wish to highlight the following: it seems you greatly under appreciate the skills of accomplished cross-examiners.
Kevin, of course Hlophe and the way the case against him was handled is very important in as much as it tells us something about the independence and integrity of our judiciary and the lilly-livered attitude of the JSC whose has lost any credibility it might have had. It is my contention that as Hlophe will not be appointed to the CC, his presence there will be a side show and irrelevant.
On your substantive points. It seems to me your view is legally untenable and absurd. No wonder the two judges on the JSC punted for a full hearing as that was from a legal (not a POLITICAL) perspective, the only rational thing to have done. This is NOT about the manufacturing of evidence. What we have here are two versions of what happened. If you believe Nkabinde’s version (especially those parts denied by Hlophe, such as that he allegedly claimed to have a mandate and had connections with the Minister and National Intelligence) the irresistable inference one will have to draw is that Hlophe attempted to influence some of the judges on the CC. Like in almost all cases where the intention of the person being accused is the real issue, there will not be direct evidence of that intention. (If the JSC standard was aopplied in criminal cases very few people would ever be convicted of a crime because the state would not be able to provide smoking gun evidence of the accused intention. This would be untenable and absurd.) A tribunal, court or other body would have to look at all the evidence and then decide whether such an intention could be deduced. One of the most important ways of doing so is evaluating the credibility of the witnesses with the help of cross examination. The CC lawyers told the JSC that there were many substantial discrepancies in the various versions of the events tendered by Hlophe and this would have provided fertial ground for cross examination. Of course, chances are that Hlophe would have been completely humiliated and destroyed by such cross examination so it was imperative for the majority to prevent that from happening (for whatever reason as yet unclear). Now we have two versions of the events (well, more than two because the witnesses – especially Hlophe – provided contradictory versions of events) and this means one or more of the jduges were lying. It is exactly through cross examination that a panel gets the chance to weight the evidence and see who is more credible and then make a deduction on who was lying and on that basis whether the person accused of wrongdoing had the intention to commit the act complained of.
Now we have the unsavoury situation of having one or more sitting judges who are blatant liars continuing with their service as judges. If I was the judge or judges who were telling the truth I would be livid. The fact that Hlophe and his supporters see this decision as a vindication therefore seem to me to be rather revealing. It is the reaction of people who deep down think their man lied but are happy that he got away with it. If he was not lying he should surely have clamoured to be cross examined so that the JSC could find that his accusers were lying and so that they could be impeached. He did not do so, arguing that no hearing was necessary. The (I would say irresistable) inference drawn from this is that Hlophe was the one not telling the truth.
Kevin Sifiso Malunga
Nooo Kevin, you just dug yourself a bigger hole, so I was right you were biased on TV, and giving the skewed version of law? You should hang your head in shame
“well-trained lawyers suffered from temporary amnesia of the fundamental principles of natural justice(such as fairness and hearing the other side) on which this constitutional dispensation is partly based.”
Well trained Judges would know not to interfer in a pending case that they not part of the panel??? Hlophe has admitted to this.
But because Hlophe the Holy of all holy’s who is the black jesus christ of law, god forbid didnt even know this?? If anything hlophe comes out looking stupid
Comes as no surprise
“The JSC has engaged in an act of solomonic wisdom. It has staved off a constitutional crisis and this is an embodiment of the conciliatory values found in South Africa’s constitution.”
Really lets have a look at the “solomonic wisdom” or more like the apostles of doom.
The six others decided that there was “insufficient testimony” for the process to continue. Three of these – Johannesburg advocate Ishmael Semenya SC, advocate Vas Soni SC and the Black Lawyers’ Association (BLA) president Andiswa Ndoni – were recently appointed to the JSC by Zuma.
Mvuseni Ngubane, a former president of the BLA. “Oh wasnt he the one who shouted out biased biased biased???
Now how about the CC judges pull the same tactic and go win there court case that the JSC was biased??? They can have this reviewed you do know this? Infact This needs to go to the courts, Hlophe started this in the courts, They should finish it now in the courts.
Every single member of the BLA have been strong supporters of Hlophe. There are public statements of how they feel
The JSC is a polluted entity and you talk about fairness? Hlophe is not your god nore is your answer to the black panther bragade.
No whats been witnessed is an embarrassment of Black transformation, hell transformation wouldnt look so good if they had to fire a black judge now would they?
Politicle backing, not judicual fairness, please dont use that in vain, you make it sound slutty.
but also bear in mind this is a larger game being played, Pikoli to the rescue
“The JSC has asserted that this country does not subscribe or yield to mob justice, vigilantism or the politics of fear.”
Firstly the JSC doesnt assert, it aids.
Secondly the mob is in the JSC.
Prof De Vos – “If we look at the bigger picture, we must surely acknowledge that he really is not that important: just one tragic and deeply flawed guy whose struggles have allowed us to be side-tracked and to take our eye off the ball.”
When a man’s integrity and competence as a judge is the issue, that man IS the ball, and every move he makes is part of the game. Anyone can argue that there are quite a few more short-listed candidates than the four vacancies in the CC to have them filled without even having to look at Hlophe JP as a possible candidate; but, will the JSC as it is currently constituted and in the light of the majority judgment do that? I almost doubt it. I just hope that the members of the JSC, esp Jeff Radebe, and Pres Zuma will be mindful of the doors they open to public (national and international)criticism if they recommend/effect the appointment of Hlophe JP to the CC. He escaped impeachment by the skin of his nose twice now, first with the OASIS thing (probably because the JSC did not have a proper procedure to discipline judges and because this was the first time the JSC had to deal with such issue); and, second, with this preposterous majority judgment (probably because none of the members that wrote or voted for the judgment are judges, trained at law to write judgments according to the law, but people who might not themselves be suitable appointments to the Bench). Then there is the defamation case still pending. Then there is also the rumours that he, at private parties (like the case of Moseneke DCJ) does not hesitate to speak lowly of others in High Office, (but this time, not about a political party or its leaders, but about the CJ himself). Will such a guy ever be a suitable appointment to the land’s highest Court on constitutional matters? I doubt it very much.
Therefore, I agree much more with your post of
September 1, 2009 at 9:15 am.
Michael Osborne – I also find your questions to Kevin appropriate and insightful. The clear answers to those questions can be inferred from the questions themselves, without much difficulty, which is of course a very ‘lawyerly’ way of framing questions. A guy like that will surely have the ability to get Hlophe JP to change his version, just like he did at first complaint stage, through first denying any contact, but thereafter admitting contact but wanting everybody to believe he was merely joking or colloquially speaking to Jaftha and Nkabinde at the time.
Anonymouse, I think we need to be clear that the defamation suit against Hlophe is still pending. That is, it has yet to shown that his remarks were defamatory of Professor Nagan – although as I am sure you will know, Professor Nagan’s claim is exceedingly well-premised apart from going for rather too much in the way of quantum.
That being said, I would like to see Hlophe questioned on the basis of that suit at the interview. If anything,we could assume that he will probably proffer some hastily fabricated account or explanation during the interview and then the true account could emerge at trial should Professor Nagan elect to take the matter that far – and I hope he could be persuaded to avoid a settlement without an admission of liability given that as a professor of law, he should be sensitive to the public’s interest in determining whether one of our senior judges is so disreputable a being that, in addition to everything else he has done, he would defame a fellow judge (and in a court room nogal).
Leigh – Thanks for that – I agree. Pending matters may not be used to infer that one is guilty without having been proven to be. However, at JSC interviews (as we have seen with other interviews earlier this year) the presumption of innocense does not apply. I agree therefore that Hlophe JP must be questioned on this issue and, he should be admonished that even the mere fact that Prof Nagan has received permission to institute proceedings against him means that his reputation as a judge has not remained unscathed and that therefore, preferrably, he should be overlooked for appointment until after the matter has been settled. I think the honourable thing for Hlophe JP to do would be to withdraw from the race at this stage and to prepare himself for a real battle in a court of law with integrity, which does not half compare to the way the JSC has dealt with these issues. But now, unfortunately, I have to hasten to ascend the bench in my own (lower) court to mete out justice for the day.
Leigh, Mouse and Prof, let it rest, Hlophe is free,as he should be, his sin:”WC Bench and Bar is riddled wth racists” report, hence those ppl will never forgive him.
Kevin, you’re wasting your time in trying to make Prof and his cronies/sycophants see the light I always maintain.
And Pierre why are you so sure Hlophe is not going to the CC, wishful thinking as always, hey!
Anonymouse, a very good point. That is, even though Hlophe has yet to incur liability for defamation (as I am sure he will), a judge has found that Nagan has a basis for a defamation suit. And thus the circumstances which here obtain are quite distinguishable from the position in which an ordinary litigant would find herself insofar as an impartial decision maker has already looked at the matter – although of course not in a manner that is conclusive on the merits thereof.
Thus the question seems to become: does not the fact that a judge has already taken a critical look at the lawsuit which Hlophe presently faces and, upon such investigation, determined that Hlophe may have a case to answer, serve as a further reason as to why Hlophe should not seriously be considered for appointment to our apex court on constitutional matters? I certainly think so.
And just in case anyone thinks Anonymouse and I are clutching at straws here, I would strongly suggest to them that the better perspective is that Hlophe has screwed the pooch so many times (an in such a variety of ways) that his critics can quite easily and naturally reach for additional examples in order to further evince the view that this bloke would have no place presiding over a school yard dispute let alone over matters as a justice of the Constitutional Court.
Further, how is it that Ntsebeza – who was on brief for Hlophe a few short months ago and on much the same facts – was able to consider whether this matter should have proceeded to a formal inquiry? Yes, from the contrived and generally awful reasoning of the majority, to the fact that the judges found the other way, to the clear basis for the view that the majority was hardly impartial: one must, as the Professor quite properly makes out, conclude that Hlophe was probably the liar here.
@Leigh
“in addition to everything else he has done, he would defame a fellow judge (and in a court room nogal).”
I did mention if anyone has heard any neww developments on Professor Nagan case against hlophe, thanks for bringing this up again. Nagan wins his case it would amount to hlophe acting with malpractice. That in itself will have to be investigated As this is the first time a judge sues another judge
Kevin: I very much hope you will not allow Chris’ accusations and ad hominem implications to distract you from dealing with the legal questions that have been directed at you.
Mdu: Your statement no real contribution to a debate about the difficult and interesting legal questions raised by the JSC decision.
Mdu, even though we have never met, I actually like you personally. But I also find it very difficult not to become disheartened when I read views which cleave to the same fashion as yours.
Even if you would not dare consider some of the logical implications of your stance, what you are effectively saying is that protecting someone as manifestly unscrupulous as Hlophe is a more important object that safeguarding the legitimacy of our courts. And that is a position with which I cannot reconcile myself.
If you are presently willing to abide that sort of thing, then I suggest you ask yourself the following question: given what we have seen from (a) the shocking treatment of Vusi Pikoli to (b), the infamous Mpshe decision, what might the ANC do if it managed to effectively remove the courts and the rule of law as impediments?
I hope you will think deeply on this question. I hope also that should you elect to do so, you will suspend whatever loyalty to may feel towards the ANC and thereby enable yourself to undertake a brave, thoughtful and thoroughly critical investigation.
This agenda of potraying the bench as a holy ground with the intention of blocking others ascending to it while at all levels we have judges and magistrates with questionable backgrounds is not going to take us anywhere.
Just like politicians and other public figures, judges must earn their respect. Our courts have a long way to go in terms of redeeming their relevance. Lawyers and other legal professions must learn something from Taxi drivers that when your industry is not squeaky clean it does not help to highlight few centres of excellence. Law Societies, JSC and Magistrate Commissions must act on their members who continously dish out pathetic justice to society. The delays and inefficiencies in courts are well know and we are grinding to halt.
The CC or CJ is but one of the things that nedd to fixed in our justice system.
The debates in these blogs are far away from the experiences of the ordinary people.
Just like the NHI govt must come up with a better Justice System and also review the costs of accessing justice in this country.
Now that some are loosing influence on the JSC then all of a sudden it is a pathetic structure. Some celebrated the performance of NPA not because it was doing a good job on all our courts and to the general public but merely for pursuing particular individuals.
If you use certain organs of the state and procedures to nail your opponents, dont change the rules when your opponents let loose these organs on you. It must not matter whose finger is on the trigger.
Our courts must earn our respect and they are not holy.
The Zuma and Hlophe cases are political and should have been resolved outside our court processes. We are all paying dearly for wanting to please a few noisemakers who have bigger agendas and interests in these cases.
We are being denied a flawless transition from a greed, apartheid state to a democratic delopmental state by the powerful and the elite.
Chris, you are right to stress the cautionary note that Hlophe is currently not delictually liable for defamation. That is, and as you say, Nagan still has to win his suit. But yes, I think the JSC may want to ask Hlophe questions at the interview about the facts that gave rise to the basis of Nagan’s claim in addition to other occurences which rightly tarnish Hlophe’s image.
It is white liberals like the DA, that opportunist tony leon, the Prof(must say, one of the better ones) who give people like John Hlophe room to get away, without proper testing, with such allegation as has been leveled against him.
Because white liberals resist transformation at every level, many black people see is as racism even when the complaint is valid.
See how quickly the Castor Semenya issue became about race. The sooner we acknowledge and frankly and openly discuss racism in this country, black people will always see themselves as victims of a racist plot. But some guy, a decade ago, spoke of ‘a country of two nations’ and urge this to be addressed. He was called a racist who was undoing some ‘saints’ legacy of reconciliation.
Reconciliation my black left foot! White people hate black people and black people still see themselves as victims but they are now, also, starting to hate back. And that is why you see the rise of the so-called ‘narrow African chauvinism’. Simple as that! But alas, our president seems to think that its time to firmly tie our blindfolds and celebrate a dishonest legacy.
Hlophe played the race card perfectly and beat the liberals at their own game. Perhaps to the disadvantage of the general population.
@Kevin Malunga and @Mdu i agree with your posts. I think the issue was also captured by Mr Suresh Roberts. I never thought i would ever agree with him but i do now. Suresh Roberts said that on Interface, the bigger picture here which is transformation of the legal profession, and it has become entagled in this circus which has been conviniently used to discredit arguments about transformation. That certain quarters will always see couds hanging over a particular individual.
The bottom line is that certain people, especially white Lawyers suddenly do not respect the JSC because it is staffed with Black Legal experts. These are the same Lawyers who were happy campers under the old system. I’m talking about Hoffman SC, Kriegler J, Gauntlet SC, and some so-called legal academics. Now it does not come as a suprise to me that no one accuses Gauntlet SC of having a cloud hanging over his head after he was accussed of racism together with other white Lawyers, instead the outgoing Chief Justice buried the racism report and everyone( the White community) was very happy. Howver, a different rule is applied when its Hlope JP. Are we not entintled to find out if those accused of racism in this report are guilty or innocent of the accussations? oh i forgot we are not because they are white and will always be innocent!!
Its even worse in the case of Hlope JP, because a Constitutionally mandated body exercised its Constitutional powers, people voted and he was cleared of the complaint. Its one thing to critique a the JSC and another to disrespect its mandate and decisions. By doing so, these so-called experts and legal academics are guilty of selective interpretations of the Constitution and see evil where there is none. I aks again, would we get the same cacophony had it been a white Judge? i dont think so. It would be naive and silly to think this is not also about race. Race is always a factor. Former President Mr Mbeki also pointed out in his book( The Dream Deferred) that when an African is in a position of power certain questions are raised which would not be raised if the person is White eg is he fit to govern?
The fact of the matter is that the JCS has decided and people are welcome to critique its decision, but not question its Constitutional mandate. It seems that white people and other blacks who have been co-opted into similar circles are happy to see Black people fail, and will do anything to see this happen. Evidence of this is seen everyday in the way the media reports and when certain academics write about similar issues. Judge Griesel of the Western Cape High Court is accused of the most serious miosconduct that a Judge could be accused of, ie fabrication of evidence, and trying to cook a judgement. I dont hear the same pandemonium that follows Hlope JP. I would really not understand anyone who disputes that its about race and stiffling transformation in the legal profession. We all know that Hlope JP had to force transformation in the Cape by apointing more black acting judges who are females, and males to the disapproval of the Cape Bar which together with the old boys’ club wanted to keep the Cape legal system as lilly-white as possible.
I’m so sick of these people, i just feel like puking everytime they open their big mouths. To me, they are a bunch of hypocrites, loud-mouth racists, who crave the return of the old order. Sorry, but Africans are in power dealing with inequalities created by you over 300 years. So deal with it and leave our Judges, and others in the Legal Profession alone.!!!!
Michael
Firstly I wasnt talking to you but since you brought my name up. You escaping the fact this wasnt a hearing this was a JSC”investigation” a probe to have a hearing, which was stated in the beginning that the parties involved would give there vesion of events and thats it and not be subject to cross examination. Only on that would they decide whether or not to hold a hearing.
Cross examination is not the issue here becuase there was no hearing to begin with and even under cross examination in a “Quasi – Judicial hearing” it is not up to the panel to decide if there will be cross examination it is however upon request of the interested parties to demand so. Did any of the interest parties request cross examination? apart from the minority panel but they are not the party involved. No because this was an investigation and thats the problem.
The “NEW” jsc saw fit to decide there was not enough evidence? not enough evidence to bring about a hearing for cross examination. Given the facts that there were so many contradictions that there was enough motivation to get a hearing under way and also ignored the “OLD” JSC ruling on prima facie.
The problem was the investigation to begin with.
The other problem is the “NEW”JSC vs the “OLD “JSC”
so in kevins defence your question has no bearing becuase there was no hearing to begin with.
My issue at hand is the fairness, this wasnt fair or just, this was a fuck up to the 6 degree by a polluted body.
Good day everyone
Finally I have a moment to throw my two-cents worth on this matter. Pity I was not able to do so earlier.
I’ve said it before, (in agreement with Prof et al) I am most uncomfortable that we now clearly have a judge or judges sitting who is/are clearly liar(s). If for no other reason, I think crosss-examination would have allowed the general public more clarity on who is lying and who is not. Whilst I accept Kevin’s point that there is no guarantee that such cross-examination would have led to us knowing who’s lying and who’s not, I think it would have at least given us more clarity and allowed us to make up our minds on the basis of evidence and not what we think of Hlophe JP or the CC judges.
By “general public” I of course mean those people (evidently very few) who still have not made a determination of who is lying and who is not. Sadly, I do not think that either Prof, Anonymouse, Leigh, Mdu, Chris fall into that category. It seems to me (judging by the comments thus far) that aforementioned people already have their minds made up. Makes you wonder is any cross-examination would have helped to change their thinking. Personally, I doubt it.
So, I am extremely disappointed that the JSC decided not to refer the matter for a full hearing because there are just so many things that do not sit very well with me – from almost everyone who’s testified so far: Hlophe JP; Nkabinde and Jafta JJ and the CJ & DCJ. It is indeed such a pity that those issues will now not be ventilated anymore.
Having said that, I think perhaps the outcome was not as bad for our judiciary as everyone makes it out to be. At least now, we can move on and the attention can finally move away from this matter.
As the believers in the Rule of Law and the Constitution, I think it’s critical that we begin to respect the decisions of these Constitutional bodies, no matter how unpalatable they might be. It is nothing short of disingeneous to now make noise about the fact that both judges in the JSC both decided in the same way. Had the people in the majority decided otherwise, I doubt we’d be doubting their intergrity as we are now. In fact, Anonymouse had even assumed that one of the judges was part of the majority – now suddenly (when the true facts come to light – assuming that the reports on how they all voted are correct) he holds the very same judge he doubted in such high esteem. It smacks of hypocricy of the worst kind.
Mzo
Im afriad we cant answer those questions who lied who told the truth and so on. infact even all the contradictions, I feel at this stage its not important
However we need to start asking questions how the “old jsc came to a finding to have a full hearing and the New Jsc came to a finding that there is not enough evidence?
Whats caused this difference
The answer i feel will be find there, and this will point either to a political agenda towards Hlophe whch will prove Hlophe was right all along about this conspiracy or used to support Hlophe.
Either way the JSC can not be trusted, the court has found the “OLD”JSC to have been biased and the “NEW” JSC smells of being Biased. This has got to go to court now.
Mr Skhokho Radebe above confuses me, I hope he will clarify the issues for me?
“The bottom line is that certain people, especially white Lawyers suddenly do not respect the JSC because it is staffed with Black Legal experts.”
Was a clear majority of the previous JSC not black? If not how do you define black?
You refer to a racism report in reference to Gauntlet, what is it called, who made it? I agree, if there is such a report it should be made public.
You go on to say:
“Its even worse in the case of Hlope JP, because a Constitutionally mandated body exercised its Constitutional powers, people voted and he was cleared of the complaint. Its one thing to critique a the JSC and another to disrespect its mandate and decisions.”
Apartheid – as an example – was also instituted according to the constitution. That does not make necessarily make things right.
Here is a classic example: “In 1950, D F Malan announced the NP’s intention to create a Coloured Affairs Department.[22] J.G. Strijdom, Malan’s successor as Prime Minister, moved to strip coloureds and blacks of their voting rights in the Cape Province. The previous government had first introduced the Separate Representation of Voters Bill in parliament in 1951; however, a group of four voters, G Harris, WD Franklin, WD Collins and Edgar Deane, challenged its validity in court with support from the United Party.[23] The Cape Supreme Court upheld the act, but the Appeal Court upheld the appeal, finding the act invalid because a two-thirds majority in a joint sitting of both Houses of Parliament was needed in order to change the entrenched clauses of the Constitution.[24] The government then introduced the High Court of Parliament Bill (1952), which gave parliament the power to overrule decisions of the court.[25] The Cape Supreme Court and the Appeal Court declared this invalid too.[26]
In 1955 the Strijdom government increased the number of judges in the Appeal Court from five to eleven, and appointed pro-Nationalist judges to fill the new places.[27] In the same year they introduced the Senate Act, which increased the senate from 49 seats to 89.[28] Adjustments were made such that the NP controlled 77 of these seats.[29] The parliament met in a joint sitting and passed the Separate Representation of Voters Act in 1956, which removed coloureds from the common voters’ roll in the Cape, and established a separate voters’ roll for them.[30] Immediately after the vote, the Senate was restored to its original size. The Senate Act was contested in the Supreme Court, but the recently enlarged Appeal Court, packed with government-supporting judges, rejected the application by the Opposition and upheld the Senate Act, and also the Act to remove coloured voters.[31]”
All of that was constitutional.
Now you may argue – although you did not – that things are different now. We live in a democracy protected by a Bill of rights and a constitutional court.
I would argue that you are right, which is exactly why so many people are scared of John Hlophe. He seems hell bent on destroying the impartiality of the court, and he is a racist to boot.
“It seems that white people and other blacks who have been co-opted into similar circles are happy to see Black people fail, and will do anything to see this happen.”
I’d argue that South African society at large are happy to see crooks fail. Regardless of their race.
There seems however to be a tendency among some South Africans to defend the indefensible, based solely on racial solidarity. Why? I wish I knew but my best guess would be that some of them feel deeply insecure, while others are just bigots. We have them in all races and there’s no reason to believe black South Africans are uniquely immune to the problem. We just give black racists an easy ride because of the countries terrible history.
“To me, they are a bunch of hypocrites, loud-mouth racists, who crave the return of the old order. ”
A question to you? Do you know the personal history of the likes of Digang Moseneke and Johan Kriegler and how much the apartheid government despised these gents?
By all means go and have a puke, but when your done, let me suggest you go read up on South African history. It’s an interesting story.
Skhokho, you maintain that, in the main, white lawyers are racists who are unable to recognise their own hypocrisy. You then seek to substantiate this view in the following manner: these hypocrits were comfortable with Hlophe’s now fabled racism report being swept under the rug but are kicking up a big stink over the JSC majority’s decision.
Your reasoning is guilty of a relevant oversight.
The allegations of racism against say Gauntlett SC for instance were not established and as such, they remain mere and unsubstantiated averments.
This is of course quite distinguishable from the latest JSC affair in which the majority managed to destroy whatever credibility it had left. That is, the patently partisan majority produced a feeble and largely inept piece of reasoning in order to prevent the constitutional court judges from establishing their allegations on the probabilities.
In short, you overlook the distinction between (a)leaving a matter alone after the refutation of allegations on the one hand, and (b),offering a clumsy basis for preventing allegations from being established on the other.
You are right to say that many people do not respect the JSC. But with respect, you appear to have maintained your usual approach to debates: you apparently do not consider why people disrepect and distrust the JSC and thus, you here offer a fresh demonstration of your typical disinclination from considering other perspectives.
I shall tender a few reasons here to make some of the basis for that mistrust and lack of respect a little clearer. For a start, the JSC sought to hold the preliminary invertigation behind closed doors and only the socially sensitive and responsible suit for interdictory relief launched by media groups prevented it from doing so. And of course, the reason as to why the JSC acted in a manner so contrary to transparency has become clear in the light of its cack-handedly reasoned majority decision.
Secondly, we need only take a cursory look at the constitution of the majority. Four of them were appointed by Zuma and one of which was on brief for Hlophe on largely the same facts only a few months ago. Then we have Jeff: ANC, Zuma man, presumably partial to a result that would not subject his liege lord to further scrutiny – however richly deserved such scrutiny may be. And the final member of the majority was a prominent figure in the BLA – an organisation that has steadily supported Hlophe for some while now.
And finally, there is the majority decision itself coupled with the fact that a minority that included the only professional fact-finders thought it was crap.
In a nutshell, the virtually necessary inference is that the JSC, for the most part, deserves no respect and neither does its majority decision.
Someday you may wish to confront the possibility that you are the hypocritical racist here.
Mzo, good to here from you again. You seem to me to regard your stance as being the fairest and most objective here. With all respect, I disagree.
Let me ask you a straightforward question: is it possible that your determination to the effect that many of us have wrongly made up our minds is divorced from the surrounding circumstances?
And by surrounding circumstances I mean (a) the JSC attempt to hold a closed preliminary investigation (b) exactly who opted for the majority finding (c) exactly who opted for the minority holding and (d), the content of the majority decision itself.
Chris, yes cross-examination is the issue here. You would know that if you had taken the time to read the majority decision, which specifically states that no cross examination of the JP is necessary.
Kevin can answer your insults if he want to. I just fear that the important constitutional issues that this blog is supposed to be about get diluted by personal attack, like you calling Kevin “biased” etc.
Frankly, I also fear that people like Kevin this kind of ad hominem attacks as an excuse to avoid dealing with the real issues, and responding to specific questions about presumption of innocence etc.
I am unsure as to what practical good complaining about the JSC will do. But I do think it is important to encourage the public to be critically perceptive.
Mzo, I think that the following theory is quite clear: the JSC majority knew from the outset that Hlophe would get off. And in the end, it was prepared to suffer a little embarrasment in order to see that goal realised.
Skhokho I apologise, Ntsebeza it seems was not one of the decision makers. This of course does render the view that the majority was partial a bit weaker – but certainly not weak given the rest of its constitution.
Skhoko Radebe – “The bottom line is that certain people, especially white Lawyers suddenly do not respect the JSC because it is staffed with Black Legal experts.” … Then why have none of these “Legal experts” not yet ascended to the bench? This kind of racist agenda will not bring you anywhere (albeit, as Khosi/Thabo suggests above, that it is the fault of white racists that caused the black people like yourself to “hate back” and to shout ‘racism’ at every turn and to Jabullah when ANY black brother is exhonerated by flawed decisions). In this case, remember, some of the other Black Legal Experts on the JSC, who became judges, formed part of the minority judgment. The complainants were almost all black. So stop screaming “Racism!” and “Sore losers!” and give us some real legal arguments to respond to.
Mzo – “In fact, Anonymouse had even assumed that one of the judges was part of the majority – now suddenly (when the true facts come to light – assuming that the reports on how they all voted are correct) he holds the very same judge he doubted in such high esteem. It smacks of hypocricy of the worst kind.” … If I was truly such a hipocrite, I would not immediately have withdrawn and apologized for my intimation that I thought that the specific JP was part of the majority. If I can be shown to be wrong in any respect, as in this case, I would always gladly and publicly retract my wrong impression even if I had previously had direct experience of flawed decisionmaking by the judge concerned. And, for the other judge concerned, I have always held him in very high esteem. As far as the specific judge under discussion is concerned, I can only say, alas I was wrong to pre-judge him on previous experience – but this time around, he is part of a decision that is clearly good in law, whilst that of the majority is learly tainted (especially in the light of Ntsebeza SC who has previously held brief for Hlophe in this matter now deciding that his erstwhile client is fit to hold office and that the allegations against him is nothing but a storm in a tea cup.) I did withdraw my misgivings just a little later in the blog referred to you.
Mzo – Like Leigh apologized to Skhoko, I must apologize for my lats remark in brackets referring to Ntsebeza SC. I merely jumped on the band wagon and got carried away with the possibility of the spectre referred to there actually existing. Nevertheless, there are a few BLA members, who were outspoken supporters of Hlophe JP from the very outset (people who jumped on the bandwagon of non-existing racism against Hlophe JP) that forms part of the majority decision which, as was pointed out by so many others, is convoluted, artificially contrived and weak (or rather bad) in law. Those decisionmakers should have recused themselves rather that taking part in reaching the decision.
Michael says:
So if i call the JSC for example biased im insulting them?
You jumping the gun on cross examination, lets first begin in having a full hearing but the issue is the investigation to begin with.
Instead of proceeding with the hearings as had been stipulated by the South Gauteng High Court’s ruling in early June the JSC decided to ignore that, best to go for another investigation
However Hlope admitted, that he did know it was wrong to discuss the case pending against Zuma as we Know the JSC found Hlophe guilty of being “unwise and imprudent”,
imprudens is the lack of caution, wasnt someone fired for a “lack of caution”? someone in the NPA for national security?
Cross examination is a waste of time when you dealing with an entity with its own agenda and the law being applied selectively.
I ask you what investigation took place? From what I could see that was a piss poor investigation. Did they really dive into the matter?
The JSC is actually in gross misconduct for public confidence and you wanna call for cross examination, how the hell is that going to help? look at the bigger picture. The JSC is polluted.
Cross examination is not the issue the investigation was the issue to begin with
The strategy is simply: Judge Hlophe will be elevated to the Constitutional Court as an ordinary justice, and Judge Sandile Ngcobo, who is likely to be appointed for an extremely short tenure, will keep the seat of the Chief Justice warm long enough for Hlophe.
So, South Africa, brace yourself for a rough rite thereafter. You should know what can happen when you get “one of us” on the bench? For starters, don’t be surprised if there is a constitutional amendment to allow the President to occupy the office for more than 2 terms. If you take such an amendment to Court, you will have a Judge Hlophe (and by then many more Hlophes) on the bench. And thats only for starters. Watch this space…
I don’t dislike Hlope because he is black. I dislike him because he is shamelessly dishonest, power hungry, populist (furiously pressing all the highly volatile race buttons) and an obnoxious showoff (the porsche and winefarm).
I want the best of our black South African brothers to assume positions of power and succeed and inspire. I think most of us do, therein lies the hope for our country.
Skhokho, while I am alarmed at your plans to regurgitate your lunch, I frankly could not agree more with your sentiments.
I happy that you have revealed a white racism so pernicious that it does not shrink from using African men as unwitting tools. (You have valuably remind us that Langa CJ buried Hlophe’s brilliant racism report.)
What worries me is that Mr Zuma, like the sell-out CJ, has now apparently surrendered to white power, by appointing white people and other minorities to the key economic posts. This is the worst kind of racism. It assumes African incompetence, and deprives young Africans of role models.
I say bring back Mr Mbeki, who, guided by Suresh Roberts, would not kow-tow to white interests and counter-revolutionaries, or join Western Imperialist in undermining Comrade Mugabe.
And let us join hands with Mr Malema in condemning Mr Zuma, Comrade Nzimande, and all other tools of white power!
Thank you.
@Kamerrad Mhambi. The report was compliled by Hlope JP and handed over to the then Langa DP, who was sent by Chalskalson CJ. It was further made available to the Minister of Justice. Yes i know the personal history of the mentioned Judges. However, a lot has changed since then, with Kriegler J showing his true colours. Moseneke DCJ losing his pan-africanist roots, because of all the money he amassed through BEE.
Should’nt you guys say the same thing with Hlope JP matter that is before the Concourt, in which the court issued directions, thereby becoming players and referees in the case. Although it remains to be seen whether they will sit in the actual hearing, the fact of the matter is that their initial involvement is flawed and has tainted the cased with extreme bias.They have set the course the litigation will follow.
On the issue of racism: blacks have realised that perhaps Mandela was too optimistic and are now returning the favour. You see Blacks have been engaging white people unconditionally for the past 15 years, with no results to show. It is settled fact that white people hate black people, no matter what anyone will try to say, this has been proven time and time again. see racism issues that keep cropping up.
@Leigh I will take the last line calling me a hypocritical rascist as a complement coming from you. Lastly, Ntsebenza SC was not part of the majority. So this negates whatever submissions you make directed at him.
@Leigh, apology noted and accepted, but i think it should be directed at Ntsebenza SC, not me.
Skhokho, why would you take may suggestion as a compliment coming from me?
Skhokho, thank you for speaking frankly to the racists.
That said, I am a little worried by your critical reference to the DCJ having acquired money “through BEE.”
As you should know, implied attacks on BEE and its effects is part and parcel of white racist discourse.
I can only hope that you too, Skhokho, have not become a tool in the hands white racists who will do anything to stop Africans from gaining control of the economy after 350 years of colonialism!
Skhokho Radebe, just a few corrections. Hlophe’s “Report on Racism” dated November 2004 was (wrongly) sent by Judge Hlophe to the Minister of Justice, who, (rightly, given the requirements for the separation of powers) referred it on to the Chief Justice. On 13 April 2005 a special committee was appointed by the Heads of Courts to confront and deal with issues of racism, including the various allegations of racism which arose from Judge Hlophe’s report. It’s report entitled “Report and Recommendations on Racism and Sexism by Special Committee appointed by the Heads of Courts” was published in October 2005.
The most important line in the committee’s finding is:
“It is necessary to point out that the allegations in the report by Hlophe JP against individual Judges and some of the members of the legal profession have, in general, been refuted by the persons concerned.”
Was this finding correct? If not, why not? One could argue that the Committee erred because although it invited all those named in the report to provide their version to the Committee, the affected parties were never cross examined so we do not know for certain whether Hlophe or those named by him spoke the truth. I have sympathy for this view. That is exactly why in the matter under discussion a full hearing with cross examination would have been best. If one were to be consistent one would either have to accept the findings in both cases, or one would have to question the accuracy of the findings in both cases. I lean towards the second view. You seem to lean to the first view which mean you would have to accept that the Racism Report contained false allegations refuted by those named. Am I correct in this?
Skhokho, I agree – that report should be made public. Lets see it.
Surely J Hlophe’s supporters can get hold of it from the man himself?
Also, can you please explain how J Kriegler showed his true colors? What exactly did he do or say and what did you infer from this?
I have to say this mister Mikhail Dworkin Fassbinder makes good points as always.
Skhokho, how about I answer my own question which was directed towards you? You would no doubt proffer that I am a racist who wants to see the preservation of a white economic, social and judicial elite. And that is precisely why I am unable to adopt the logical, insightful and just plain reasonable course: ignore all of Hlophe’s indiscretions and disregard also the confirmation to the effect that the JSC is more an encumbrance than it is an aid.
Whether or not you honestly believe that I am a white hypocritical racist is your business. I am not about to try to debate the point with you because (and sincerely with all respect) there is nothing I could do to convince you – apart from availing myself of the assistance of that daring political philosopher Julius Malema. Yes maybe his brand of social and political insight could carry the day.
But in future, it would make exchanges far more interesting and meaningful if you would respond to the sustantive points which are actually in dispute reflected in the posts to which you respond. With respect, it is difficult to take seriously your generic response of racism. That is not to say that racism is not a pressing social concern that we as a people – irrespective of race – should challenge with a view to eradicating. But the point which you have thus far been unable to grasp is that having people cry racism with little in the way of facts to sustain the view is itself a pressing social problem.
Skhokho – would you go so far as to say that all white people are in fact “cockroaches”, or would you limit yourself to the more acceptable “pieces of shit”?
Leigh, with respect, your denial that you a racist proves you a racist.
And you should hang your racist head in shame that racists like yourself have manipulated Skhokho into betraying BEE.
@Kameraad Mhambi, well by declaring that transformation of the judiciary will compromise the independence of the judicary. This is absurd in the extreme, and deserves to be rejected with the utmost contempt it deserves. as to the report, i think prof has answered that, however, i dont agree that people were exonerated. The difference between this and the Hlope case is that he was exonerated by a body charged with investigating and deciding on the discpline and conduct of Judges, so i think you are misguided and wrong to equate the two. Gauntlet SC and others were never exonerated by a body like the JSC or some other competent body. So a cloud remain on their heads in so far as we did not get a chance to see them being questioned in an open forum about the allegations which are recorded in that report.
@Fassbinder, i’m not saying there is something wrong with BEE, i support it but it needs some reviewing in order for the ordinary man to see its fruits. I criticise Mosene DCJ in as far as he seized to be concerned with issues that dominated his mind when he was Deputy President of the PAC, ie uplifting our people and protecting them. However, i’m with you on all the posts you posted above. I am pro black Fassbinder. i will never be co-opted by whites and used as a tool to obliterate our gains so far. Thank you.
@Leigh, why do you put words into my mouth Leigh?. This is what i meant; i meant that because you hardly agree with me on any issue, i was not suprised that you would label me as hypocritical rascist. So would the JSC have been an aid had it found negatively on Hlope JP?, also Hlope JP has never neen found guilty of any misconduct, yet you and others see the need to condemn him, would you agree that Harms JA does not deserve to be on the bench of the SCA taking into account his refusal to investigate the apartheid death squads, and his helping the course of those who were involved. Also do you agree that Griel J does not deserve to be on the bench in light of the allegations facing him. If No, why not? Because you and others have consistently argued on the same line with regards to Hlope JP.
lastly, Fassbinder thank you again for having an independent mind, the same goes to Suresh Roberts.
Quite an interesting exercise to Google the names Mikhail, Dworkin and Fassbinder in combination. As in Critical Legal Studies the person using this pseud makes ‘trashing’ his/her bussiness, never coming up with a concrete feasible answer to a specific problem, just ‘trashing’ all possible solutions.
Just when I big up Mikhail Dworkin Fassbinder, he lets me down.
No, you got it wrong. Being white makes you a racist.
Denial that you a racist proves you a racist white liberal. Which is much worse.
Mousie, I assure you I do have a reinforced concrete feasible answer.
But I would never share it with a Mouse.
Mikhail – actually I am at ease with being called a Rat. Ask Khosi.
@Peter, the simple answer is that it is very difficult to determine which white person is truly passionate about the struggle of Black people. But there are a few who work for the ANC who have distinguished themselves. So i dont count them in the same basket as these others whom i refer to. Basically all those like De Klerk, and others who think that the ANC is a failure and could have reversed the inequality they created in just 15 years.
I mean all those whites who are hell-bent on destroying our leaders and generally underming everything that BIko instilled on Africans.
Skhokho, Mikhail et al – go look see what has been said under the new post on callousness laziness etc. Its fun all of this.
Skhokho you say that Kriegler “by declaring that transformation of the judiciary will compromise the independence of the judicary. This is absurd in the extreme, and deserves to be rejected with the utmost contempt it deserves. ”
Can you explain why this statement is absurd in the extreme?
I also still think we should see J Hlophe’s report don’t you? Will you help us campaign to get it?
I am calling upon all right thinking South Africans to join me in congratulating the JSC for the sterling work they have done on the Judge Hlophe matter. The integrity of the JSC has remained intact following the manner in which they ruled in the Judge Hlophe matter. It was indeed a definitive clear cut judgment. I know that there is lot of people who loathe Judge Hlophe with passion but I would like to urge them to stop casting slurs on the JSC for the sake of our constitution and the investors. These people only have themselves to blame; if there were no media lies, the molestation of Jacob Zuma in the media with impunity and the exclusion of ANC and Jacob Zuma supporters economically – we would not be concerned who gets appointed to the judiciary. The judiciary would not have become a contested arena; they would have continued as before to pontificate who should be appointed as a judge. Again these people only have themselves to blame. Congratulations on the JSC for keeping its integrity intact!
Zwakala with lines like …
“stop casting slurs on the JSC for the sake of our constitution and the investors.”
…you must be mister Fassbinder wrinting under a new name? Either that or your Pieter Dirk Uys?
@Kameraand Mhambi, because this assumes that our female Judges and male Judges are incompetent as wrongly alluded by Lewis JA who is now facing a complaint with the JSC for this.
There is nothing wrong with transformation of the judiciary along racial lines and gender lines. Afterall, these are the same people who were excluded by that dispicable system of the apartheid. Judges go through training before being elevated to the bench, so Kriegler J is wrong to say transformation is a threat to the independence of the judicary. In any event, independence in reality exist in so far as leaving the Judges alone to control their working hours and processes, but as to judgements, it would be silly to think Judges deliver independent Judgements, since each is affected by that individual Judge’s prejudices. As underscored by writers on this subject.
Professor Dlamini of the University of Zululand put it like this; “There is no such thing as justice, if you want to see justice, you should bend-over and look between your legs, and you will see justice.”
Skhokho says:
Professor Dlamini of the University of Zululand put it like this;
“There is no such thing as justice, if you want to see justice, you should bend-over and look between your legs, and you will see justice.”
That quote would have made Jimmy Kruger our ex apartheid minister of justice proud. Well done Skhokho.
No, i dont think the Prof had that in mind, he was talking about the illusion that people have about justice, not that there is no total injustice. Now what i sought to do was to to allude that independence of Judges is also an illusion to some extent taking into account each individual Judge’s prejudices. Please dont misquote Professor Dlamini. Thank you.
Skhokho – “So i dont count them in the same basket as these others whom i refer to.” Are they perhaps “off-white”?
But seriously. This is what Kriegler said:
“If the independence of the judiciary was to be preserved, then the South African government’s “misguided [methods of] transformation would have to be confronted fearlessly and honestly
Transformation and independence in the judiciary were “Constitutional imperatives”, said Kriegler. Although the Constitution did not explicitly mention transformation, this was implied, as the Constitution acted as a “bridge between the old and the new”.
“Transformation was essential,” he stressed, but the Constitution also created a “triad of State power” in the form of the executive, legislative and judicial arms of government, each of which must be kept autonomous, and never “sacrificed on the altar of transformation”.
Kriegler stated that the threats facing the independence of South Africa’s judiciary came from both outside and inside the system.
External threats came mostly from national office, Kriegler explained, in the form of resolutions that were “reaffirmed” at the December 2007 Polokwane conference. These African National Congress (ANC) resolutions envisaged the “reform” of the judiciary.
The government wanted the Department of Justice and Constitutional Development to take over the everyday running of the courts. But, said Kriegler, one need only look at the state of Johannesburg’s courthouse, which he described as “filthy, ill-maintained… and a disgrace”, to gauge the level of respect shown towards the judiciary by the executive.
Understandably, Kriegler conceded, the new administration was inclined to “sweep clean” – and he was not referring to the state of South Africa’s courthouses – the practices of the past, by taking over control of the judiciary. Although he said he admired the ANC’s principles and commitment to non racialism, the government’s plans for the “reform” of the judiciary still posed a significant threat to its independence.
The internal threat to the independence of the judiciary, Kriegler explained, came in the form of the Judicial Service Commission (JSC). This organisation was the “ideal solution on paper”, but not in practice. While the JSC was an “essential organ of State” and he admired many of the individuals that made up its ranks, Kriegler said that the institution had “become an impediment, rather than an aid to judicial independence”.
The JSC’s function of appointing judges was regulated by Section 174 (s174) of the Constitution. Kriegler explained that s174(1) required the appointment of “appropriately qualified” and experienced individuals, while s174(2) called for gender and racial representation.
The judiciary must be representative of the society in which it served, said Kriegler, but s174(1) was the primary requirement, with s174(2) its “rider” and therefore a more discretionary condition. This order of importance had been “turned on its head”, Kriegler stated, at a cost to the judiciary.
The JSC’s appointment of unqualified judges “eroded confidence” in the judiciary, said Kriegler. This was evident in the common practice of commercial litigation not going to court, but rather being heard before arbitrators. Businesses would “go where the market said [one] received the best service”. This indicated a lack of trust in the judiciary, as well as undermining the independence of the judiciary as judges were sidestepped.
In the appointment of judges, the JSC had taken to questioning candidates on their political history. Kriegler said that he did not understand the relevance of a candidate’s political allegiances as to whether or not the candidate would make a good judge.
In terms of the JSC’s “quasi-disciplinary” function, Kriegler said, with reference to the ongoing deliberations over Judge Hlophe, that the institution had been swayed there too by political and transformative imperatives.”
Mikhail, I must of course bow to your superior analysis. Upon considered reflection I am actually fairly appalled by my behaviour. I mean, how dare I actually ask someone who would accuse me of racism for proof to that effect? I don’t quite know where my mind was. And yes, one should not manipulate others into betraying views which they hold dear – that sort of thing is shameful. As I am sure you will agree, this is precisely where I should think on the sterling example of measured and thoughtful speech set by that paragon of rectitude Julius Malema.
Skhokho, I suggested that you consider whether you are the racist hypocrit here. One question which you might have thought to ask yourself is: why would someone suggest that I do so?
Of course introspection often requires much in the way of courage and wisdom. It is, in a nutshell, a difficult and daunting task. I cannot compel you to undertake it – and frankly I do not care overmuch whether you do given that you are the one living your life.
But it does seem that you and I will forever bandy words at cross purposes. And the reason for that which I would suggest is this: I typically engage you and you respond to me not by addressing sentiments which are in dispute but by introducing further points which you often do not seek to defend. Now there is nothing objectionable about introducing further relevant issues. But you should first (or at least also) address views which go to undermining yours. Dispute resolution is not possible if allegations are simply ignored. And I have told you before that I will address your views earnestly – but where I introduce the challenge, I am quite justified in expecting you to either seek to undermine my specific allegations or to concede whatever point might be at issue before you introduce other considerations.
Kameraad, thank for your post the subject matter of which was Kriegler J.
I much admire Kriegler J for his courage and commitment to the judiciary – the independence of which is of course of pivotal import to the future of our constitutional democracy.
Kriegler J is no fool. He will know that is views – however sincerely proffered and ably substantiated – will attract much in the way of shallowly considered criticism and even personal insults. And yet he speaks up anyway. But I must concede that I wish he did not encounter so much unfair opposition as the fact the he does reflects, in my view, very poorly on our country.
@Skhokho 17:45
“There is nothing wrong with transformation of the judiciary along racial lines and gender lines. Afterall, these are the same people who were excluded by that dispicable system of the apartheid.”
By Apartheid you are referring to the system a few decades ago whereby the judiciary was transformed along racial and gender lines, correct?
Skhokho, does your explanation mean that you are willing to concede that I am not a racist? Do tell.
@Leigh,i honestly suspect that you are a rascist.Taking into account your one sided comments. @big sleeper,yes.
Skhokho, if that is indeed your opinion, then it is too bad you feel that way. But still, you are, as you will know, free to hold to that belief. Although I shall respectfully restate what I regard as being the principal weakness of most of your posts: it seems you still do not investigate the content of my posts – which are admittedly demonstrate a fair measure of distrust in both Hlophe and the ANC. Thus it seems you cannot really explain, based on the content of my posts, why I am largely averse to the ANC and the JP.
Let me, if I may be somewhat bold, make a few suggestions to you about critical reading: when you look at a post made by someone else, try asking a few questions of it. You may wish to start with the following two: one, what, in simple terms, is the author’s central submission? Two, on what grounds does the author seek to substantiate that submission?
If you (a) look at my first post in the present discussion which I directed towards you and (b) answer the two above questions (but in respect of my first post), I shall gladly do the following: I shall earnestly reconsider my position that you (i) do not understand points made by other bloggers and (ii), that you typically do not think your submissions through.
You are of course free to tell me to get lost or to simply ignore me. But I sincerely and respectfully mean to press home to you that when it comes to debating, between comprehension and argument, comprehension is necessarily the anterior step.
Its clear that us whites cannot be left to our devices and rid ourselves of our racial prejudices and phobias. I suggest that we are sent to “rehabilitation” centres in order to change and become part of the new South Africa. Same as a drug addict is unable to help her/himself, we too must be taken by the hand and guided to the righteous path. Its obviously requires an admission that we are racist, which is the first step to recovery.
Leigh, this is good advice in terms of the current predicament you find yourself and instead of shying away from it by posing further questions, rather just stand up and be recognized by yourself for what you’ve been many times referred to on this Blog …. a RACIST!!!
It would be a giant leap on behalf of many, who like you, are not yet ready to come out of the closet and accept that they suffer of this sickness.
Leigh, stop being absurdly defensive! No self respecting black man would entertain an earnest dialogue with a white bigot. No Jew should debate a Nazi. Why do you take seriously a rabid black racist? (Bearing in mind, of course, that Pierre insists that black people cannot be racist.)
Harold, with all respect, your rehabilitation idea will not work. Racism is built into your very genes. I suggest emigration. That, or gene therapy. (I can recommend a doctor in Gdansk.)
Leigh
My apologies for taking a while to respond to you. I’ve just come back to the office after 2 months abroad so I have been up to my ears.
On the issue at hand, I must say that it will be unfortunate if you see me as declaring myself to be “holier than thou” (in the negative sense). With regard to the questions you raise, it seems to me that an answer thereto will necessarily take me back to one of our very first encounters where I expressed my views on the issue.
Very briefly, I have 2 main concerns:
1. People like Prof, Anonymouse and lately yourself, who always seem to be so prepared to accept any allegation against Hlophe JP as true simply on the basis of how you feel about the man’s previous actions and/or utterances (most of them no more than allegations, I might add – no more than the allegation that Gauntlett SC is a racist). The people falling in this group seem incapable of seeing anything good that can ever come from Hlophe JP.
2. People like Mdu etc who are fully behind Hlophe JP and seem to labour under the misapprehension that the man can do no wrong. Anything wrong the JP is alleged to have done must be blamed on someone else, most possible some racist out there.
I don’t think any of these groups are helpful in ensuring that our democratic principles are strengthened. Personally, on this issue of Hlophe JP, I consider myself to be lucky enough because I really feel no affection for the man. If there had been a fair hearing and he was subsequently shown to have been the liar, I would have been most happy to have him shown the door. I am on record on this on this very blog.
So, I consider myself different from “group 2″ above on that score. The way I see it, they will never accept a finding against Hlophe JP without blaming it on someone else – most likely a racist!
However, I think it’s fair to say that most bloggers here fall within “group 1″ and as such I find myself debating issues against their views, which (regrettably) leads to an inference (a wrong one at that) that I am with “goup 2″. For “group 1″ it seems no finding in favour of Hlophe can ever be correct. Evidence of this can be found no further than the desperate attempts to argue that the CC judgment in the Joe Slovo matter was “pro-poor” as opposed to Hlophe JP’s “anti-poor” judgment. The fact of the matter is that both Courts found that the people must be evicted, the rest was really just the detail – the substantive Order sought was the eviction, which both Courts ordered.
In light of the above, I repeat that I’m extremely disappointed that the matter was not referred for a full-blow hearing.
@Leigh,your suggestions are noted.however,i dont agree with most of what you say.We have different ways of arguing and it would be really unfair for anyone to argue to your liking.i have raised and answered peoples’ posts,yet you are the only one who has seen a problem where there is none. so next time,i will answer your posts in a numbered manner.well so as to clear up any confusion and prevent what may be seen as a racist way of engagement.i dont think any amount of negative press will ever dissuade me from supporting the ANC,BLACKS WHO ARE COMMITTED TO ACHIEVING THE IDEALS OF OUR CONSTITUTION LIKE HLOPE JP,MR MBEKI,ZUMA,ETC. You see some of us are immune to propaganda. oh! your concerns not above are dismissed.
Mzo, your input is thoughtful and impressive.
You are right in bemoaning the mindless polarisation this debate has engendered.
Yet many find the moral equivalence difficult you advance difficult to accept.
Irrespective of what one thinks of the merits, the JSC’s majority decsion seems terribly dubious.
Unfortunately. no one who supports the exoneration seems to be willing to defend it on the merits.
Maybe Kevin Maluga will respond soon.
Mikhail Dworkin Fassbinder says:
September 1, 2009 at 22:05 pm
If your submission is to be believed and the Professor’s previous argument of blacks being capable of bigotry but not racism, we are certainly no-where near an answer to this conundrum.
You however, maybe correct. I think Canada has recently offered asylum for those of us who wish to remain “ill”. The criteria is just to convince them that we are being marginalized and being attacked by blacks at every turn. I wonder if that journalist from Denmark at Ms Semenya’s press conference will hurry to Canada or return to his own country and bring about the continued exploitation of africans.
Myself? But before taking this up, I will remain here and influence more blacks to become “counter-revolutionary” and maintain our stronghold over the judiciary as long as possible.
Michael, I know that I am probably wasting my time with Skhokho. The trouble is that I do not like to dismiss people out of hand – an irksome tendency I know. But who knows, I may even find the key.
Mzo, while I certainly admire your commitment to fairness, I must respectfully say that your analysis here does not, to my mind, take cognisance of the content of the JSC majority decision. It is also silent on some of the surrounding circumstances which I asked you to consider. I will of course concede, as I have earlier, that I very much disfavour Hlophe. But I do think you do me something of an injustice when you suggest that I might accept any allegation against Hlophe as true.
I shall, with respect, reformulate the question which I earlier asked you to consider: in what sought of light do you think the circumstances surrounding the JSC majority decision casts Hlophe’s position?
And the circumstances which I have in mind are that (a) the Counstitutional Court judges’ counsel argued vehemently and exhaustively in a written submission for a chance to cross examine and that apparently Hlophe’s representatives were rather less keen thereon shall we say (b) that a court had to order the JSC to allow some media access to the preliminary investigation (c) the constitution of the majority (d) who constituted the minority and (e) the nature of the reasoning reflected in the majority decision itself.
Having considered the criticism which you directed to me – which, knowing you, I am confident was made in good faith – I would hope that you would consider mine also. If it is fair to say that you have divorced your analysis of the present subject matter from the surrounding circumstances which I have suggested – and I tend to think that you have – perhaps you would say why.
Skhokho, somehow I doubt that my suggestions were ‘noted’.
Questioning your own views may actually lead to further and stronger reasons for endorsing your positions and not necessarily to you having to abandon them. But believe me, I do accept that it would take more than my humble efforts to cause you to honestly question your loyalties – you are certainly an oak.
Perhaps a wiser, better person will find the key.
Just a thought.
Had Hlophe been linked to former President Mbeki, he would have been impeached.
Remember that the Zuma public accepted the story behind the illegally obtained tapes as gospel truth without affording people like Ngcuka an opportunity to even comment on them.
In these days of advanced technology, how do we know that those tapes were not doctored?
Leigh says:
September 1, 2009 at 23:11 pm
Leigh, my failure to deal with the issues you are referring perhaps stems from my failure to adequately grasp the questions. However, I shall do my best to comment generally on the issues you raise and I must apologise upfront if I fail to adequately address your issues:
(a) I have already mentioned the fact that I’m extremely disappointed that the JSC decided not to refer the matter for a fearing an an opportunity to see some cross-examination. However, I cannot help but wonder if the 2 judges involved (Jafta & Nkabinde) would have been as keen as the rest of the CC judges, in particular the CJ & DCJ for that cross-examination. Remember that they are on record as saying they didn’t really want to discuss the matter any further. In any case, cross-examination was likely to affect them more than the rest of the CC judges – who were obviously not there during the visits.
(b) I’m not exactly sure how this point is relevant, especially considering the fact that one of the people in that Comm is judge Ngoepe who’s reported to have been one of the people forming part of the minority “judgment”. In other words, him being part of the minority dispels any doubt that may have been created about the character of the people in that Comm.
(c) & (d) I choose not to look at the personalities (perhaps naively so) because you do end up making wrong conclusions based on how highly you regard a particular person. A case in point, is Anonymouse getting it wrong with Ngoepe & Ntsebeza (based on who they are, an assumption was made on how they would have voted) or Prof’s misplaced faith in Sello Alcock’s professionalism (based on his impression of the man on a previous occassion).
(e) I have expressed my misgivings regarding the issue of cross-examination. I do feel that the majority may have underestimated the impact that may have had in terms of getting some clarity on where the truth lies. I do not know if we really would have known more than we know now, but I think the JSC decision has really deprived us of an opportunity to find out.
“I do think you do me something of an injustice when you suggest that I might accept any allegation against Hlophe as true”.
I must concede that perhaps I went overboard when I made that suggestion. My apologies.
Did I miss something?
Did Kevin Malunga respond to Michael Osborne’s questions?
Mzo, thank you for your response. And I apologise if the question which I posed was somewhat unclear. Perhaps I did try to make one question do the trick where a few might have promoted more clarity. So I shall merely state my opinion on the understanding that you are probably not inclined to credit it. And in order to set out that opinion, I shall rely on some of the points which I raised a little earlier.
I think that the present JSC (at least the majority thereof) were confident from the outset that there would be no formal hearing. And given the court order to the effect that the media was to be allowed some access at the preliminary investigation, it seems to me that the JSC majority merely reconciled themslves to having to suffer whatever embarrassment would accrue due to the weakly reasoned majority decision.
Happily it is common ground between us that it is very unfortunate that there is to be no formal hearing. And in case you are intersted, I would add that even though I have my doubts about Hlophe, I shall of course concede that suspicion can never equate with a finding of liability which is premised on admissible evidence.
And apology accepted.
Do you wonder how you, as a white person, contribute to maintaining a white-dominated world?
Yes, I know “whiteness” and “blackness” are purely social descriptors that have no basis in biology however we live in the most racialised (socially, economically and politically) society in modern human history. And in the the experience of “black” people, the vast majority of “white” people continue practising racial-profiling as a subtle, but discernible(to black people only apparently) form of social exclusion.
How do we “black” people see racism even when white people are oblivious to it? Well, it is the benefit of too many year experience and the accumulated memories that are now instinct. Of course there are many amnesiac people, both black and white, and that is fine and good, but that should not prejudice those who remember how racialised this country is from seeking redress.
It’s no secret except to loyal black liberals (usually bourgeoisie nationalists) that white liberals cannot abide blacks who don’t subscribe to their ideological patriarchy. These people have always appeared on the radar of denial of racism – wallowing at Mandela/Tutu/obama-esque Post-racial hogwash.
The truth of the matter is that John Hlophe threatens “whiteness” as a social class of unearned privilege. And he is being persecuted for calling for the “Africanisation of SA law” and his critics conflate that with a “narrow Africanist chauvinism” – what ever that is. The planted axiom, of course, is that it would be somehow offensive, unseemly, rude, or even racist for a black person to say such things, however sensible and well-reasoned.
Of course there are dangers in the notion of reciprocal collective identities: the collective guilt of “whites” on the one hand, vs. the collective innocence of “blacks” on the other; the collective racism of “whites” on the one hand, vs. the collective pure-heartedness of “blacks” on the other.
However, in South Africa racism is largely a “white” characteristic – as the past 400 odd years will evidence and it is more plausible that Hlophe is victim of this “white” liberal racism. Another episode of the assault on skilled, independent, intelligent blacks.
Do you wonder how you, as a white person, contribute to maintaining a white-dominated world?
Yes, I know “whiteness” and “blackness” are purely social descriptors that have no basis in biology however we live in the most racialised (socially, economically and politically) society in modern human history. And in the the experience of “black” people, the vast majority of “white” people continue practising racial-profiling as a subtle, but discernible(to black people only apparently) form of social exclusion.
How do we “black” people see racism even when white people are oblivious to it? Well, it is the benefit of too many years of experience and the accumulated memories that are now instinct. Of course there are many amnesiac people, both black and white, and that is fine and good, but that should not prejudice those who remember how racialised this country is from seeking redress.
It’s no secret except to loyal black liberals (usually bourgeoisie nationalists) that white liberals cannot abide blacks who don’t subscribe to their ideological patriarchy. These people have always appeared on the radar of denial of racism – wallowing at Mandela/Tutu/obama-esque Post-racial hogwash.
The truth of the matter is that John Hlophe threatens “whiteness” as a social class of unearned privilege. And he is being persecuted for calling for the “Africanisation of SA law” and his critics conflate that with a “narrow Africanist chauvinism” – what ever that is. The planted axiom, of course, is that it would be somehow offensive, unseemly, rude, or even racist for a black person to say such things, however sensible and well-reasoned.
Of course there are dangers in the notion of reciprocal collective identities: the collective guilt of “whites” on the one hand, vs. the collective innocence of “blacks” on the other; the collective racism of “whites” on the one hand, vs. the collective pure-heartedness of “blacks” on the other.
However, in South Africa, racism is largely a “white” characteristic – as the past 400 odd years will evidence and it is more plausible that Hlophe is victim of this “white” liberal racism. Another episode of the assault on skilled, independent, intelligent blacks.
Ag nou man Schadenfreude Supreme
That is such a disappointing polemic.
“And in the the experience of “black” people, the vast majority of “white” people continue practising racial-profiling as a subtle, but discernible(to black people only apparently) form of social exclusion.”
It’s true that black South Africans experience some white South Africans as racist. Trouble is – studies (questionaires) show black South Africans experience other black South Africans as even more racist. (I’m sure your not one of those lefties that deny black agency, so you’ll except what people say)
OK read that again, and internalise.
Done? Now revisit your theories and come back with a better lines.
You also say:
“The truth of the matter is that John Hlophe threatens “whiteness” as a social class of unearned privilege. And he is being persecuted for calling for the “Africanisation of SA law” and his critics conflate that with a “narrow Africanist chauvinism” – what ever that is.”
His call for the Africanisation of SA law is rather recent, and I trust you will agree that the Hlophe saga is going on rather longer than that.
As an aside and interestingly Afrikaner groups applaud this call of his, as do I. Luckily apartheid did not try to have one imperial legal system, so under it much of indigenous law was not only preserved but even promoted by their ideologues.
PS: I leave some footnotes for you to read. (Again)
“Almost half of the respondents said they had received racially inspired “prejudicial” treatment in hospitals and clinics and 39% in shops. Twenty-six percent said they had been ill-treated by municipalities because of their race, and 32% said they had been treated in this manner by government agencies such as the police and the Home Affairs Department.
The survey found that even though African people were most likely to be victimised by other races, almost half of South Africans had experienced discrimination at the hands of Africans.
Some 44% of respondents claimed to have experienced an attitude from Africans they believed bordered on racial discrimination, against 27% who had received similar treatment by whites when seeking out services in public places.
The chief executive of Plus 94, Sifiso Falala, said the survey found that Africans also felt they were unlikely to be offered decent service by African employees in both public and private institutions.
“Blacks are more likely to be ill-treated on race grounds, but blacks are also more likely to treat other blacks worse than they treat people of other races,” said Falala.
The results showed that 38% of all respondents said they had experienced “discrimination” from people of all race groups in these institutions, and 45% claimed to have experienced discrimination particularly from black Africans.
Falala said the survey was aimed at measuring overt resentment, where people deliberately treated others in a way that was prejudicial and could be perceived as racism.
“What I found most interesting was that black people were the largest group with this problem, both as victims and as perpetrators.
“This is something that people need to know because it’s a reality for many people when dealing with a security guard or a bank.”
Zamile Mbanjwa, of the University of KwaZulu-Natal, said the findings were consistent with her recent experience at a Ladysmith restaurant.
“I wasn’t served because the waiter made it his policy not to serve black people because they don’t tip.”
The poll found that Indians were the most likely recipients of racial hostility from Africans, with three out of four Indian respondents claiming first-hand experience of this.
The sentiment was most obvious in Durban and academic and activist Ashwin Desai said this was not surprising. “You tend to compare yourself with somebody across the road from you. Therefore the conflict between Africans and Indians happens ironically in places where they live next to each other,” he said.
Institute for Justice and Reconciliation director Professor Charles Villa-Vicencio said: “In South Africa we need to deal not only with the bland issue of black-white relations … but the more subtle dimensions of ethnicity, culture and identity.”
Kameraad Mhambi
Ive come to the conclusion about south africa, there are 2 types of breeds here:
one the one hand you got people who will for ever point fingers and blame each other on the past, seeing who’s more racist than the next. who is the next proud emblem of race.
on the other hand you got people who forget about color and tend to want to move forward.
Schadenfreude:
Two points:
1. You proposal that “whiteness” is merely a “social descriptor” with no biological basis mirrors Pierre’s indefensible position, adapted from American social constructivism of the 80′s. Of course “whiteness” and “blackness” have biological bases. The real point is that (a) there is no such thing as a genetically “pure” race; (b) the “biological” differences are extremely superficial, and are not correlated with relative abilities; and (c) the significance accorded to “race” in any partricular society is a political matter.
2. Your description of “black liberals” as “bourgeoisie nationalists” puzzles me. I would have thought that black liberals and the nationalists are diametrically opposed. The former aspire to colour-blindedness and equal opportunity. The latter despise these liberal notions, and affirm the need for strong Affirmative Action across the board, black enrichment. etc. Not so?
Ag Schadenfeude – “Hlophe is victim of this “white” liberal racism. Another episode of the assault on skilled, independent, intelligent blacks” – last time I looked the perpetrators of his and Zuma’s persecution were by and large black comrades. At worst they were the victims of (or actually “victors over”) “black” liberal racism.
Dis baie confusing vir my….
Oh, Kevin! Where are you?
Gone into hiding, have you? We are all dying to read your answers to Michael’s excellent questions. Perhaps you have no answers – other than to trot out the same tired arguments about natural justice and conciliation again.
@Skhokho
“@Skhokho 17:45
“There is nothing wrong with transformation of the judiciary along racial lines and gender lines. Afterall, these are the same people who were excluded by that dispicable system of the apartheid.”
By Apartheid you are referring to the system a few decades ago whereby the judiciary was transformed along racial and gender lines, correct?”
“@big sleeper,yes.”
Irony > Skhokho. Fail.
Kameraad Mhambi: Michael: Peter
Biological race is a scientific myth – it is possible for a European Caucasian person to be more genetically similar to an African Negroid person than another European Caucasian. Race exists only in the context of sociological engineering and human anthropology.
The amount of melanin in your skin is merely a result of endless genetic variation that are past down by heredity – you could not identify the race of the individual from their DNA.
But to my point – Indeed black racism is no less real than white racism – in fact, most police men during apartheid South Africa were black. The more fundamental question, I think, is the origin and beneficiaries of a sociology of racial superiority. On the basis of the historical record, the answer is the white liberal tendency – where whiteness (again) is not a biological descriptor but rather a social one.
White liberals patronise black people who they feel the can intellectually dominate and undermine black people who are too intelligent and independently minded. These black people adopt white liberal values which makes them black liberals. Historically, black liberals became the ideological forefathers of modern African bourgeois black nationalists.
That may confuse those who enjoy their state of historical amnesia. Some Black people when faced with a situation in which they are seeking desperately for a way out, and the can see no way out except capitulation. It is racist method of self-education, forced upon him by race prejudice and hundreds of years of White supremest oppression.
Honest population geneticists and physical anthropologists have always recognised the nonexistence of biological races in the human species. Melanin is nothing more than skin pigmentation – but blackness and whiteness are issues of class consciousness. Too many people see Black independence and anti-racism and its advocates as some sort of portent, a sudden apparition, as some racist eruption from the depths of black oppression and black backwardness. It is nothing of the kind. It represents the high peak of thought on the question of black liberation which has been going on for over two centuries.
My 5 cents worth…
Kameraad Mhambi: Michael: Peter
Biological race is a scientific myth – it is possible for a European Caucasian person to be more genetically similar to an African Negroid person than another European Caucasian. Race exists only in the context of sociological engineering and human anthropology.
The amount of melanin in your skin is merely a result of endless genetic variation that are past down by heredity – you could not identify the race of the individual from their DNA.
But to my point – Indeed black racism is no less real than white racism – in fact, most police men during apartheid South Africa were black. The more fundamental question, I think, is the origin and beneficiaries of a sociology of racial superiority. On the basis of the historical record, the answer is the white liberal tendency – where whiteness (again) is not a biological descriptor but rather a social one.
White liberals patronise black people who they feel the can intellectually dominate and undermine black people who are too intelligent and independently minded. These black people who adopt white liberal values/world-view become (for the lack of a worse term) black liberals. Historically, black liberals became the ideological forefathers of modern African bourgeois black nationalists.
That may confuse those who enjoy their state of historical amnesia. Some Black people when faced with a situation in which they are seeking desperately for a way out, and they can see no way out except capitulation. It is racist method of self-education, forced upon him by race prejudice and hundreds of years of White supremest oppression.
Honest population geneticists and physical anthropologists have always recognised the nonexistence of biological races in the human species. Melanin is nothing more than skin pigmentation – but blackness and whiteness are issues of class consciousness. Too many people see Black independence and anti-racism and its advocates as some sort of portent, a sudden apparition, as some racist eruption from the depths of black oppression and black backwardness. It is nothing of the kind. It represents the high peak of thought on the question of black liberation which has been going on for over two centuries.
My 5 cents worth… peace to all (black, white, albino, Indian and Chinese)
Hlophe: What happens now?
Here is one example of what happens now, hidden deep in an article in the M&G
“Sisulu’s legal adviser Paul Ngobeni rejected suggestions……. ”
http://www.mg.co.za/article/2009-09-02-sisulu-sticks-to-her-guns-on-soldier-dismissals
Schadenfreude:
1. Please answer my question as to why you think a black liberal = bourgeois nationalist.
2. The claim that “you could not identify the race of an individual from their DNA” is not true.” Every element of the phenotype is encoded in the genome – and that includes melanin, hair colour, eyes etc. Now it may be that in some statistical sense a person with light skin, blonde hair, and blue eyes could be classified as “black.” But the overwhelming odds are that such a person would, in the manner in which the word “white” is commonly used in the English language, be called “white” by most people who speak that tongue.
At what stage of civil court proceedings would it be appropriate to ask Judge President John Hlophe presiding – and one’s litigation opponent – whether any money has ever changed hands between them? And when would one broach the subject oneself on behalf of ones client to confirm that the good Judge is not in the pay of ones own client?
HEALTH WARNING
Those of you who are still recovering from the recent HLOPHEPHOBIA epidemic should be aware that it makes you especially vulnerable to a new strain, which experts are already dubbing MOTATAPHOBIA! The symptoms include sweaty palms, and an obsessive urge to drag a black judge before the JSC on trumped-up charges. If you feel these symptoms, lie down alone in a darkened room. Try to sleep.
Mikhail, just read that Kriegler J plans to seek some sort of legal basis on which to challenge the JSC’s decision not to proceed to a formal inquiry. And if I could trouble you for an opinion about that exemplary constitutional democrat Kriegler J: what’s your diagnosis? Does he have an especially virulent strain of Hlophephobia?
Snowman – As always, a good, moral question.