One would think that it would have been hard for Judge President of the Cape, John Hlophe, to order the forced eviction of 20 000 poor, black people from the Joe Slovo informal settlement. After all, when he was in trouble for taking hundreds of thousands of Rand from the Oasis company and then lied about the reasons for these “out of pocket” expenses, he presented himself as a champion of transformation and a victim of racism.
But I suppose now that he is safely back in the saddle and he can enjoy his ownership of a wine farm while driving in a shiny new black Porsche, he has forgotten the values of the Constitution that requires him to consider the human dignity of the poor people whose forced eviction he has now ordered. Who cares that the order will destroy this community and that the people now living close to work opportunities will be dumped in the gramadoelas in Delft?
Yesterday the judge President handed down a judgment in Thubelisa Homes and Others v Various Occupants and Others that seems to me completely devoid of compassion and also legally misguided because it essentially ignores recent decisions by the Constitutional Court, while purporting to follow them. Thubelisa Homes applied for the eviction order so that it could bulldoze the shacks next the the N2 before erecting shiny new homes where only a few of the original occupants of the informal settlement will ever live.
The starting point of the judgment is that the residence of Joe Slovo – who have been living on the land since 1994 and have been given tacit approval for living there by the authorities – are unlawfully occupying the land needed for a vanity housing project (the N2 Gateway project) and that it would therefore be fine to remove them to Delft because it would actually “undoubtedly [be] for the benefit of the residents of the informal settlement and in line with the Constitutional values”. These pesky residence just do not want to know what is good for them. Obviously bureaucrats and a judge driving a Porsche knows much better what is good for them than they would know themselves. After all they are only poor and black.
The judgment refers to an earlier Constitutional Court judgment in the Port Elizabeth Municipality case where justice Albie Sachs stated that a court should be reluctant to grant an eviction order against relatively settled occupiers unless it is satisfied that a reasonable alternative is available. Thus, Justice Sachs continued, the legislation expressly requires:
the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy.
But the judgment then approvingly quotes from the Supreme Court of Appeal judgment (handed down by that champion of transformation, Harms ADP) in City of Johannesburg v Rand Properties (since overtaken by the Constitutional Court judgment two weeks ago!) to the effect that the Constitution does not give a person a right to housing at State expense at a locality of that person’s choice and concludes that it is fair and reasonable to dump the 20 000 Joe Slovo residence in Delft – even though it is 15 kilometers from Joe Slovo, far away from the city center of Cape Town.
This line of reasoning is perplexing, to say the least, as the Constitutional Court in the City of Johannesburg case in effect overruled the SCA judgment by ordering the parties to negotiate with one another and by implicitly accepting that it would not be humane or in conformity with a respect for the human dignity of the inner city dwellers to dump them at alternative accommodation 35 km outside of town. In that judgment Justice Yacoob stressed that the human dignity of those affected by removal must be respected and that their views must be heard.
This seems to imply that high handed and unilateral action by officials or judges telling people what is good for them will not suffice. A real and meaningful engagement is required and merely telling the people of Joe Slovo that it was in their own interest to be dumped in godforsaken Delft would not be good enough. What is sorely lacking in the Hlophe judgment is the “grace and compassion” that Justice Sachs spoke about.
For me what permeates the judgment is a complete lack of compassion for the plight of the Joe Slovo residence. There might be a case to be made to upgrade the Joe Slovo informal settlement, but then it should surely be done within the confines of the Constitutional values of dignity and respect. By repeating over and over that the Joe Slovo residence are living unlawfully on the land, the judgment seems to suggest that they are criminals who are thus less deserving of concern, compassion and respect.
It accepts that the government policy that would force most Joe Slovo residence to permanently live far away from their places of work is completely reasonable because the government says that it is reasonable. It emphasises the need for the court to respect the separation of powers and thus suggests that the court should take at face value assurances by the government that it would be better for Joe Slovo residence to be moved. It completely ignores the fact that the Joe Slovo residence do not think it would be better for them to go and live in the veld.
It is hard to argue that “elements of grace and compassion” animate the conception of reasonableness in this case. It suggests that it is perfectly acceptable for the state to forcibly remove a large group of people who have been living on a piece of land for thirteen years merely because the government of the day has decided this is what needs to happen.
Maybe I am too harsh on the judgment, but it seems to me that given our history in which the apartheid government forcibly removed people at the drop of a hat, courts should be extremely sensitive to give eviction orders where such a large group of people will be moved and their lives disrupted for ever. In this case there is a complete absence of this historical perspective.
To my mind it once again shows the difficulties of judicial transformation and poses questions about what kind of judges we need on the bench. Surely real judicial transformation requires judges who are sensitive to the needs of the poor and destitute and at least an honest engagement with their fears and complaints. In this judgment there is a complete absence of such engagement and the Joe Slovo residence and their needs are completely ignored. They are treated as recalcitrant individuals standing in the way of the government housing programme and their needs and wishes are completely ignored.
Before the law they have once again become invisible. They are not treated as individual human beings with feelings and needs but merely as a problem to be dealt with. What we need are more judges who really wrestle with the very difficult issues presented by gentrification of informal settlements and the real hurt and pain of forced removals. This is what the Constitution – as interpreted by the Constitutional Court, not the SCA – requires.
Perhaps this is too much to ask of a judge who might experience this informal settlement on the N2 as an eyesore and a stumbling block to progress – even as he speeds to his wine farm in his shiny Porsche.
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I agree.
And so do I.
Your point about the lack of hisorical perspective in the judgement is well taken. It seems to me that the senior legal fraternity (and sorority) post-1994 tries to remind us of the importance of historical injustice for contemporary jurisprudence. That a judge in an important position can neglect this historical perspective is of concern. For transformation issues, it raises the question who can represent which community and for what reasons? While experience and assumed representation of a specific group may matter, rational understanding, empathy, ‘Verstehen’, in the sense of Max Weber may be even more important.
Hlophe is one of the mistakes of transformation of the judiciary (affirmative action for the sake of affirmative action only) – and must be removed before he causes more damage to the image of the transformed High Court.
Thoams Blaser’s reference to Weber is apposite. Has anyone ever worked out how a modern bureaucratic state can practically operate, day to day, on the basis of “compassion” being shown to individuals by state representatives? I can well understand how, as Weber says, personal empathy may modulate the relationship between subjects and state functionaries in a pre-modern setting. But the very character of the relationship between functionaries and the individuals in a bureaucratic state is that it is necessarily de-personalised. Not only is any kind of emotive connection between the bureaucrat and the thousands of individual she must deal with impossible, it is also arbitrary. After all, a bureaucrat’s capacity for “compassion” varies according to her personality, her background, and what she had for breakfast that morning.
Call me a grumpy cynic, but if what “ubuntu” means in administrative law is the reintroduction of pre-modern personalisation of the state/citizen nexus in the modern industrial state, it is a staggeringly impractical notion.
Prof,
Again you are letting your ill feeling, about a person, cloud proper judgement. I personally do not see the coralation between this case and the judges personal properties.
The judge did not bring this case to his courtroom, government did. Why not take a stab at the government instead of a judge who is interpreting a case as he sees it. This is the very same undermining of the rule of law that you were busy advocating against just a few weeks ago. As an example, remember Moseneke, remember ANC?
If Peirre de Vos has the divine right to critisize a judge for his judgement, the same should apply for the Zizi Kodwa’s of this world.
Stop being a hypocrite. Period.
Michael, maybe I am a bit less cynical than you on this one. Exactly because I do not see the bright line boundary between law and politics (while accepting, following Henk Botha and others) that judges are nevertheless constrained in what they decide and how they talk about and justify their decisions, I think the law can be infused with “grace and compassion”. In this case it would at least have required the judge to show that he had grappled with the real tension between respect for the LAW and respect for the dignity of those who he ordered to be removed and to take responsibility for that decision. If that is impractical, then it would be rather sad.
Khosi, I have never said one should not criticise a judge and I think we are far too often to lenient on judges when it comes to their judgments and should be robust in our criticism. My post tries to engage on a legal level with what the judge decided and suggests he got it wrong because he lacks the understanding of the law and the compassion required by the Constitution to have done the right thing. Judge Moseneke was attacked because he merely stated that he would make decisions without having reference to what the ANC thinks and that he would be independent. He was therefore attacked for stating that he would do his job. The two scenarios are not the same.
Pierre,
At best your argument is a dangerous one. You see, I do not see how one can disrespectfully question the decisions of a High Court judge without eroding the credibility of the judiciary. That is exactly what was happening in the Moseneke issue, the only difference is that it was pre-judgement.
You see you went beyond criticizing, Pierre you mocked the person that is the judge. So much so that the Faceless one felt the need to say the following: – ‘Hlophe is one of the mistakes of transformation of the judiciary’.
If people are told, by anyone, that they have an incompetent judiciary – why should they respect it? Hence why should they respect the rule of law?
“Grace and compassion”? Sure, I’m all for it. But one has to face reality. Ever seen an aerial picture of Cape Town? Looks pretty much full up to me. Meanwhile, there’s a backlog of close on half a million (state-sponsored) housing units which have to be built for people who are already there and waiting, with more coming in all the time. Where are these going to be built? All the way up Table Mountain, perhaps? On golf courses? Kirstenbosch Gardens? Of course, none of these prospective homeowners want to live near the CBD – those job opportunities! – rather than in the boonies, since the public transport system is, to say the least, abysmal. Then, where is all the extra water needed going to be found? Cape Town’s a pretty dry place most of the time. The infrastructure is creaking, and the garbage dumps are already full to overflowing. Compassion? Ubuntu? A staggeringly impractical notion.
Correction: they ALL want to live near the Cape Town CBD. The whole of Africa does, judging by the queues at Home Affairs. There was even a time when I wanted to go and live in Cape Town but couldn’t afford it. Still can’t.
Khosi, you raise an important and legitimate point, namely what are the limits of judicial criticism. The judiciary is not elected and I think in an open and democratic society we have a right and a duty to criticise judgments we think do not adhere to the letter and the spirit of the Constitution. I do not think this judgment does that and I said so. I did so by personalising the matter by flagging the particular problematic history of Judge President Hlophe which may be seen as skating on thin ice but of course if the JP was impeached (as he should have been) this would not have been necessary. I do maintain that there is a difference between criticism of judges by political parties which is not at all based on the law but is no more than an attempt to intimidate judges not to act without fear, favour or prejudice on the one hand, and criticism, no matter how robust, by ordinary academics and the public based on the actual judgment handed down and that my criticism still falls within the latter category.
Prof
Firstly id like to say that i am a Langa resident and have been for 23 years. (just in case your view of what i say below is that i say it because i emerge from a different spectrum)
I tend to not only agree with Khosi herein but believe that your statement as posted on the Legalbrief site of:
“To my mind it once again shows the difficulties of judicial transformation and poses questions about what kind of judges we need on the Bench”.
…is unfounded and bringing in a judge’s personal circumstances to correlate his view of the matter is incorrect. As someone who has sat in one of your lectures at varsity and marveled at the way you present consitutional issues and their importance for a just society, i am somewhat dissapointed.
Do you now mean a so called HDI who has now benefited from transformation policies put in place by government cannot deliver a rational judgement of a matter which does not favour other HDI’s, particularly less fortunate ones?
Have you forgetten that a judge’s salary in SA can afford an automobile, or would it have been better had he delivered the judgement while using public transport?
I am also at pains in trying to understand how a judge Hlope’s view of the matter is connected to your perceived ‘difficulty’ of judicial transformation. I may be over-emphasising here, but do you mean that true transformation is when a HDI does not drive a porche? and thereby is the only way that he/she can show compassion for the poor, as you put it?
If that is your argument, my honest opinion is that you might just be missing the point about transformation or you really have been led by your ill-feelings on the person.
Further if you dont mind, would you be so kind as to give a suggestion as to what kind of judges are needed on the judiciary and how an objective selection of such a judge can be done.
Lastly, i would like to make you aware that the comments in your note, which i have no doubt that they have been made under your great dislike for the Judge president, are not only tarnishing positve reflections on the need for transformation of the judiciary but for all the other industries as well.
Ponder.
My Learned Friends,
The differents views voiced and opinions tabulated herein need to be considered carefully. I have had the pleasure of reading the judgment, and indeed to me it lacks “grace and compassion” as alluded by De Vos but the question that I have in my mind is only one, does it warrant personal attack on the judge, I think not.
We need to separate issues in this instance and deal with those relevant to the issue at hand. At the same time I understand the frantic situation that the poor find themselves in this case and if the judge has made an error of law then let us address that and leave out what could in fact be construed as personal vendetta towards him.
I have to agree that our judiciary has on several occassions let us down and once again this case aggravates the plight of the poor masses of our people and those who are rich are just getting richer and forever live comfortable and untouched!
Please be all sobre? that is my greetings,
Very clear :
Hlophe got bail out in the recent Cape Bar / Cape Bench Saga by key political/ legal figures and it was pay back time – to make the government happy. he who pays you, one way or another, directs you.
The bigger lesson to be learnt is from senior black counsel, when he acted prominetly against government, there were few instructions forth coming from government. That was the punishment. We are human beings, we do love people to make us happy especially when we make them happy.
I respect Hlophe so I do to Pro De Voss but the people of like are protected by law and the is or must be in favour of them.
But the law is not a machine, its control and manipulated by individuals.
Langa people – you solution, vote with your feet.
mzekezeke
How strange is it that from the relevant comfort of your homes or offices you are all either criticising or defending a judge for a judgment delivered by him when it is that same relavant comfort that the judge is hoping to achive for the people he (so cruelly according to most of you) evicted. While most of you go on about compassion and humanity and the constitution only Clara touches on reality and not a single one of you offer any alternative, less inhumane solution. What is it that you suggest the Judge and for that matter the government do with these people? Where are the government suppose to build houses for the homeless if the Jo Slovo people are to be left alone? If you have any suggestions then please put it forward. The reality is that these squatter camps are an eye sore and I applaud governement for wanting to do something about it, all be it that they take their time with it. No one goes by there saying “whow look at the wonderful living conditions, what progress has been made since 1994″. None of you should be allowed to critice if you can not offer or suggest a solution to a very real problem. If there is any other way the government can improve the lives of these people then say so but to go on about their rights and dignity and doing nothing about their living conditions is of no benifit to anyone.
I am concerned that Punkie seems to think that to criticise certain policies is to deny the validity of their objectives. While transformation and affirmative action policies may have good reason to exist, the practice of their implementation, their intended and unintended consequeces warrant discussion and evaluation. With reference to Judge Hlophe, the question arises whom does he represent and based on what grounds?
Can’t agree with you more, Thomas
I must agree with Pierre. The well-established convention that one does not criticise a judge personally is salutary. But one of the bases of that convention is the liberal fiction that a judge’s biography has nothing to do with how she decided cases. Modern legal realism subverts that fiction — but in so doing it also undermines one of the rationales for separating the jurist’s personality from her jurisprudence.
One implicit assumption implicit in the racial “transformation” of the judiciary is that a judge who belongs to a group that suffered exclusion and repression is more likely to adjudicate in a manner sensitive to that group’s plight. If Pierre wishes to argue that this assumption has been proven wrong in the case of a particular judge, how can he avoid “personalizing” his criticism?
The idea that anyone can be impartial as a judge is, in reality, a lie brought about by proponents of a westernised system of governance. Impartiality, in reality, is impossible. All you decisions as a judge is based on you own personal views, preoccupations, and preferences. You cannot remove that from what you are as government official. It should be obvious that this is impossible.
Therefore, the type of person a judge is becomes absolutely essential. The fact the Hlope has a wine farm and an expensive porche is important because it shows where he COMES from. It shows where his allegiances lie as a judge. It shows that he cannot understand what it is actually like to live in Joe Slovo as compared to Delft. Therefore, he has no right to make pronouncements that the conditions in Delft are better than Joe Slovo because he is not in a socioeconomic position to understand this.
Does anyone think that if we were lucky enough to have a judge who actually lives in one of Cape Town’s hundreds of shack settlements, the judgement would have gone in favor of the government? Law is partial. And recognising this is the first important step in understanding why law almost always goes in favor of the wealthy.
Its time to let the poor speak for themselves. Its time to allow the poor to be able to decide on their own future. They are not stupid. They know what is good for them and they know that if they move to Delft, they will pay 3 times as much for transport and that they will loose their jobs.
I really hate racist you proclaim to be caring about Black people whilst they’re propagating their racist agenda. The attack on Judge Hlope is not about the destitutes is about racists who are trying to get even with the Judge. These racists including De vos they’ll never talk about racists in OFS, racist who shot Black people, racists who encroach upon rights of Black people everyday.
We must be careful of these racists questioning transformation for their racist ends. This De vos person instead of talking about the merits of the case challenges Judge Hlophe’s credentials. There are many racist Judges but this De vos person will not talk about them for obvious reasons.
This is perplexing.
Beware my friend. Beware of these racists.
Khetlha, you are obviously not a regular reader of this Blog, otherwise you would know that I have often spoken out against racism – including that at the Free State University. You have obviously also not read the post carefully or otherwise you would not have said that I do not address the merits of the case. I argued that the Judge President failed to apply the letter and the spirit of the Constitution as annunciated by the judges of the Constitutional Court and even quoted from the judgment to prove my point. You seem to say I am not allowed to criticise Judge Hlophe because he is black and any criticism of a black judge is by its very nature racist regardless of the context and content of that criticism. Down that path lies racial essentialism and eventually authoritarianism, so I will not follow you down that route. Please feel free to read the rest of the Blog and then to make cogent, logical arguments for why you believe I am a racist. In the absence of an argument and in the face of mere invective, I am unable to engage with you on any meaningful level. You might have some issues that goes beyond the appalling racism in our society, I guess, and if it makes you feel better to rant and rave here, I am happy to provide the platform. Have a nice day.
Pierre, you are able to point out to Khethla that you were vociferous in your condemnation of what happened at Reitz hostel. That is true. But I am afraid you and other “white” commentators have helped foster the blinkered foolishness manifested in Khethla post. You have done that by indulging the massively disproportionate reaction to the pranks of those stupid children at Reitz.
You should realise that the black comprador elite will always find it expedient to inflate to the level of unspeakable atrocity trivialities like Reitz – which in any case reflects petty classism and idiot boorishness on the part of those little thugs as much as racism.
The perhaps unconscious strategy of the black bourgeoisie is to divert attention from the structural racism in which they, as much as Porsche-driving members of the judiciary, are complicit. By structural racism, I mean the decimation of an entire generation by HIV/AID; the grinding poverty that has significantly increased since 1994; that thousands of impoverished black defendants are railroaded to jail every year for lack of proper legal aid. The list goes on.
In none of these tragedies are whites the victims. Liberal-minded whites have their own cynical reasons for blowing out of all proportion what happened in Bloem. They expiate their own guilt. By sycophantically cringing before and parroting the cynical fury of the young black elite, they establish their own credentials as righteous whites. And they conveniently shift responsibility for a long history of oppression, perpetrated by their own massive privilege, despite the death of apartheid, onto the shoulders of a few Afrikaans kids in Bloemfontein.
Until black students start boycotting classes, tipping rubbish bins, and burning buildings to protest these catastrophic legacies of apartheid, their professed fury at what happened at Reitz does not deserve to be taken seriously, not even for a second.
Of course, people like Khethla will say that dismissing Reitz as “trivial” is itself a manifestation of racism. Do not be intimidated by such bluster. For yes, given the immense tragedy of South Africa, what happened at Reitz hostel IS indeed trivial. And they are themselves (self-hating), racists for averting their eyes from the real crisis. Let them deny that the unnecessary death of a single child from HIV-AIDS is an atrocity worse than ten thousand Reitz’s.
Anon1 and Khosi, I have changed my pseudonymn so as to avoid confusion. Anon1, I must say, what you are saying makes a lot of sense and gives food for thought.
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