Retired Chief Justice Arthur Chaskalson has published a good article today on the unprecedented campaign by a certain individual to have Judge President John Hlophe appointed Chief Justice. In it the Chief Justice tries to address – in a rational manner – on this campaign and concludes:
One comment, however, needs to be made. It is a complaint alluded to by Ngobeni in his campaign; the complaint against Judge President Hlophe, which is presently before the Judicial Service Commission (JSC). It comes from 13 of the most senior judges in our country. All but four are black. Unlike Judge President Hlophe, who took no part in the struggle against apartheid, the present chief justice and deputy chief justice and others who signed the complaint have a proud record of having been active in that struggle, the ultimate struggle for transformation, and having done so at considerable risk to themselves and their families.
No one could legitimately suggest they are “self-hating blacks” opposed to transformation, or are part of a racist conspiracy to undermine the judge president because he has shown himself to be in favour of transformation.
What about transformation? Judges are not appointed by judges; they are appointed on the recommendation of the JSC. Of the 23 members of the JSC, only three are judges. All three are black. When appointments to a particular High Court are dealt with, the judge president of the court concerned and the premier of the province form part of the commission. Apart from five nominees of the broad legal professions, including the academy, the other members are either members of parliament or nominees of the president.
The JSC, of which I was a member for more than 10 years, has taken seriously its constitutional mandate to recommend fit and proper persons for judicial appointment, and in doing so, it has always kept in mind the constitutional requirement to consider “the need for the judiciary to reflect broadly the racial and gender composition of South Africa”.
In 1994, all but five of the more than 100 judges of the higher courts were white men. There were only two female judges, both white, and three black male judges. There was a somewhat different but substantially similar profile within the legal profession, and because of our history, a comparatively small number of experienced black and women practitioners.
Today, seven of the 11 judges of our highest court, the Constitutional Court, are black. The chief justice, the deputy chief justice, the president of the Supreme Court of Appeal and all judges president of the high courts and the Labour Court are black. All of them, and not only Judge President Hlophe, support the transformation of the judiciary.
Comparing the calm and rational voice of the retired Chief Justice with the ranting and frothing at the mouth of Hlophe’s Supporter in Chief, it is difficult not to laugh at the “campaign” being run on the Judge President’s behalf. I suspect it is doing the Judge President more harm than good – even among those who might otherwise have been sympathetic to his cause. If I was the Judge President I would call off this campaign to stop futher embarrasment.
Dear Pierre, please convince us why should we just take Chaskalsons’ opinions at face value and ask Hlophe to call off his ambitions, and please also tell us why should we not be wary in case Chaskalson himself has an axe to grind with Hlophe for the same reasons you and your ilk ,and in particular the majority of Cape laywers,have.Why should we take the voice of a retired person seriously without question, he is not beyond fallibility and is actually prone to it because his rusting mind may be affected by retirement, in other words he should just retire and shut up his frothing mouth!
@Mdu,
frothing mouth?? wow…..you show amazing respect towards your struggle heros.
Mdu:
Just looking at the demographic build-up of the courts renders Hlophe’s argument null and void. If Hlophe were a white person or an Indian person, he may have been able to play that card, but do you seriously consider that Hlophe is being lynch-mobbed in a racial conspiracy by judicial officers who are majority black like him?
It’s not a case of whose opinion it is, it just doesn’t make any sense that a majority black bench would conspire against another black person based on race. That’s like being wheelchair bound, applying for a job at a company that is run by someone in a wheelchair and then suing the company for unfair discrimination if you don’t get the job.
Mdu, try responding to Justice Chaskalson’s ARGUMENT. It’s not good enough to say “why should we listen to him, he is retired and might be a racist”; if you want us to take you seriously you have to show why Chaskalson is wrong.
Garg, you must take me seriously when I tell you that there are Blacks, despite their struggle credentials, who once offered an opportunity to get in, closed the door on their fellow Blacks and believe you me when I say to you that there are politicians who even went further and said “I did not join the struggle to be poor”, so what I want to tell you is that people are chameloenic so was Judas Iskariot when selling His Master out. Struggle credentials or not, I firmly believe the CC is run by a certain white woman on behalf of a docile Langa CJ!
Can a campaign be ran by one person (P. Ngobeni)?…From where I m sitting, the opposite side – led by you know who – is the one consistently campaigning here, seeing that even the retired ones have entered the fray now. I know I m told that Innocent till Proven Guilty applies only to “courts and in criminal cases” but I chose to believe the JP is innocent till the contrary is proven and as such, he too, qualifies to be CJ “finish and klaar”.
Wouldnt it be interesting to hear Adv Willem Heath (or is he Judge?) views on this Hlophe JP saga? I, for one, happen to think he (Heath) represents represents transformation in its totality.
Mdu // Jun 25, 2009 at 9:39 am
You are now becoming an “uppity black man” and bringing a hogwash baseless theory that a mystical white woman is the puppet master and Langa is the puppet.
Not only are you sounding stupid but now racist and sexist.
I think you need to start over and wake up the fact judges do not appoint judges they are appointed by the JSC and then the president.
but then again as an uppity black man i would suppect you would rather be in favor of Superior Courts Bill so your patriotic ANC can choose which judges they would like, since you have no faith in black judges and white judges esp living in the WCape
P.S as for Judas he is actually a hero and doesnt deserve the reputation he has been left with.
Retired Chief Justice Chaskalson’s article in the Cape Times this morning was what one would expect from this man of such high character and experience. Mdu and Spuy are way out of any such league. I for one, ignore their spiteful ravings. This much I will say to them: Know thyself first, cause all you are doing is spewing bad energy.
It is a constant source of amazement to me how the voices of dissension (read: ANC supporters) will consistently find new levels of discrimination to denounce dissenting viewpoints. To disqualify an individual based on the fact that he is retired, trumps even the over-used race card!!
What next? A person’s viewpoint is not recognised because one is a vegetarian?
It is becoming so predictable that the likes of the ANC and Hlophe supporters resort to personal attacks to defend their views as opposed to engaging with the issues.
We seem to have two entirely different ways of reasoning here. One says a person’s views cannot be trusted because of age, race or other unmentioned personal issues. The other actually addresses the issues. The former is not argument as such but invective aimed at obscuring the weakness of the argument (if any). Better to deal with the issues, it seems to me, than shout and scream about the person. The former course of action will leave one with one’s dignity more or less in tact while the latter would not.
Mdu – you are quire correct – we should not simply take what poeple say at face value.
On that line, what is it that convinces you that Hlope is telling the truth when he says that:
- he got a dead man’s permission to take cash from a dodgy asset manager and make rulings in their favour;
- he didn’t know that the firm whose boss he was appointing as an acting judge on a regular basis was bankrolling his kid’s university costs;
- he was really too sick to brief his councel for the JSC hearings;
- he didn’t call someone a “white piece of shit”;
- it was his colleague’s fault that he took forever to produce the clicks judgement.
Hello?
Mdu and Spuy, if I have not yet introduced myself to you two. An oversight on my part and one for which I apologise. So hello and nice to make all of this official.
I have a proposal for you two. This is not some attempt to make enemies or anything like that. Rather, this is merely a way to, I hope, draw the meaningful contributions out of you that I am sure you are able to make.
This is my proposal: I would like for you both to write brief opinions. And I will give each my undivided attention. And with luck, others will do the same. I ask only that each of you answer three questions in your opinions.
Here are the questions:
1. How does Chaskalson understand Ngobeni’s theory as to why Hlophe is taking some stick?
2.On what grounds does Chaskalson challenge Ngobeni’s theory?
3. What, if anything, is wrong with (a) Chaskalson’s grasp of Ngobeni’s theory or (b) the grounds upon which Chaskalson challenges Ngobeni’s theory?
Leigh, I think judicial legitimacy is important for the same reason it is important that the police are legitimate. People are less inclined to obey people they distrust, The judiciary has no enforcement arm of its own; it must depend upon the executive, and ultimately public opinion,
Pierre, you suspect the campaign is doing more harm than good. I must salute your sunny optimism. But I fear you underestimate the pull of racial solidarity. Time will tell.
I do not doubt the gravity of the opinion of Madiba, albeit he is retired. Neither would I doubt the integrity of Comrade Mac Maharaj, even though he is no more a member of the formal political leadership in the ANC or government. Similarly, comrade Chaskalson’s views must be respected and not summarily discarded just because he is retired. When he fought side-by-side with us against apartheid his views and opinions were important, why should it be any different today? This does not mean that because of his struggle credentials I must agree with him, but at the very least he has more than earned my respect to listen and consider what he has raised, and disagree where I beleive he may have got it incorrectly. Similarly, if Comrade Langa can be manipulated like a puppet on behalf of the evil objectives of racist puppet-masters, then we have to conclude that all our leaders, including the current ANC leadership could also be manipulated by the likes of Heath, Ramos, etc. Being disparaging towards Langa, is not just racist, but also it is a slippery slope that can result in one believing that they are the only ones who has not been ‘corrupted’ by the ‘white devil’ and therefore they are the only ones who can save Black people.
Let us not just judge the argument raised by Comrade Chaskalson but also note that his considered view is not complimentary towards the supporters of Judge Hlophe.
Mdu:
Thanks for your reply. Now, offer some proof please?
By the way, I don’t think being of a certain race means you owe others of that race a certain payback. Struggle credentials or not, ultimately your argument is that because Justice Chaskalson sold out his homies, he is wrong about Judge Hlophe. Huh?
So what if the bench is run by a certain white woman? We all know that gender and racial representation is a white elephant that is so engrained in our consciousness, we even have it in our glorious Constitution.
As long as you can’t fault her judgements and as long as she isn’t trying to influence the rest of the judges in a highly suspect manner like Judge Hlophe allegedly did, I think it’s ok if she sells out her homies once in a while to give a brother a fair judgement.
Thanks to Comrade Donovan! Not only for the substance of his posting. Also, because his use of the term “comrade” vividly recalls the fraternal bonds between the liberation movements and such champions of judicial independence as Comrade Brezhnev, Comrade Fidel, Comrade Gomulka, Comrade Honecker, Comrade Mao, Comrade Kosygin, Comrade Stalin, and so on, and so on..
Does anybody know where on the net one can access this newly introduced Legal Practice Bill about which Legalbrief and the newspapers are writing today?
Something about wiping out the difference between advocates and attorneys….
Henri – I believe it is not yet in Bill-form. It cropped up in Jeff Radabe’s budget speech on Justice and Constitutional development yesterday – he vowed to present the Bill to Parly shortly
Thank you too Michael Osborne, for reminding me that the liberation movement does not lie about who its friends were when times were dark. To borrow from Madiba who told his buddy Bill Clinton that those who helped the liberation movement in the struggle against a crime against humanity will not be dropped now that political liberation has been achieved. Those friends include the names you mention plus Muammar Gaddafi. And Bill Clinton who wants us to drop our friends can, and I quote Madiba, ‘go and jump in the nearest pool’. At least we do not lie that we liked Thatcher, Kohl, or Reagan, or even JFK when he engineered the overthrowal of a democratic government in Brazil, ushering in military rule for decades. We did not act like we did not know Pinochet, although the American, Spanish, and British governments, engineered his bloody reign! Yes they were our friends and comrades, and yes we disagreed with them on many matters, but we also agreed with them on many others. We did not regard them as angels, and they did not act like they were. I do not know you Michael Osborne, and would not claim to. All I can hope is that you are at least as honest as the liberation movement, and if you did not participate in the struggle against apartheid (if you were old enough) you do not act like you did not ever support apartheid! Struggle credentials can and should not ever obfuscate the pursuit of truth and justice, however to be scared into hiding these credentials because Communist principles is not liked by those in power, is tantamount to moral fraud. I will not hide that Chaskalson is my comrade, just because the word has fallen out of favour! Do not be smug about the sacrifices made to just say the word Comrade.
Oh dear. Now that someone is calling him Comrade I regret sticking up for Chief Justice Chaskalson. Soon, we’ll be queueing for bread. In Zimbabwe.
Donovan, suppose John Vorster had spoken freely about the support he and his fascist brothers had received from the Nazis in the 30’s and 40’s. We might, I suppose, have grudgingly admired such brazen candour. But still have found his unapologetic association a little troublesome, no?
Garg, you supported him because he is one of your own and is on your side when it comes to Hlophe, forgetting that he is a Cd who was fighting for a just cause back then, not now ironic isn’t it?
Perhaps the article below would have been better entitled “Twisting in the wind”.
“Twist in Hlophe case
2009-06-25 09:28
Philip de Bruin
Pretoria – Cape Judge President John Hlophe on Wednesday encountered some resistance from a rather unexpected source in his battles with Constitutional Court judges.
President Jacob Zuma and Justice Minister Jeff Radebe submitted a joint notice to the Constitutional Court in which they indicate they will oppose Hlophe’s request that they be added as parties to his (Hlophe’s) request that the entire bench of the Constitutional Court step down from his application for appeal.
Hlophe submitted his application to appeal after nine judges of the Supreme Court of Appeal unanimously decided that the Constitutional Court’s judges had not violated his rights to dignity and equality with their handling of the complaints they’d submitted against Hlophe at the Judicial Service Commission (JSC).
Hlophe had initially said the judges of the Constitutional Court may consider his application for appeal, as long as they decide in his favour and grant his application.
Don’t want to be involved
Shortly thereafter, he seemed to change his mind and said that the judges of the Constitutional Court shouldn’t even touch his application for appeal.
At the same time, he indicated that he wanted to add Zuma and Radebe as parties to his application for withdrawal, since they will be responsible for appointing the acting judges in the Constitutional Court, if the judges of this court do indeed withdraw.
But according to Wednesday’s notice, neither Zuma nor Radebe are interested in becoming involved with Hlophe’s application. They will fight any formal application from Hlophe to add them as parties to the matter, they say.
Ironically, the charge against Hlophe at the JSC is based on allegations that he tried to influence Constitutional Court judges to render a verdict in Zuma’s favour in an (at that stage) undelivered verdict in one of Zuma’s cases against the National Prosecuting Authority.”
A real friend does not expect anything in return, Donovan, they help SA on our way not to gain anything from it, but to see us happy that’s what good friends are for. Thanks comrades, now can we go on building a non racist, non sexist society based on human dignity, freedom and equality please?
@CD
That article appears to have got it wrong. Zuma and Radebe indicated their intention to oppose on June 10. The papers filed this week was from Radebe, who indicated that he will not oppose, but abide.
Mdu and Spuy, I am now firmly convinced that if Hlophe, Malema, Zuma, Vavi, or whoever from that crowd stood up and said the sky is actually not blue it is bright pink and the grass is not green it is bright red, and Helen Zille or a retired judge or PdV stood up and said, “No, based on the facts, the sky is blue and the grass is green”, you would disagree with them purely on principle, and use words like “racist” and “neoliberal” and “colonial” and “apartheid” to “prove” your point.
Lets agree then. The call by the likes of Judge Kentridge is being answered. People are coming out of the woodwork.
On the face of it, the article seems to be well balanced. Maybe, just maybe, this is because the Judge doesn’t venture into the merits (or demerits) of the case. He leaves that as to what is already in the public domain.
The question is who is the audience? Who is this article directed at?
Apparently the fact that Judge Hlophe is often presented as a ‘champion of transformation in the judiciary’ is the nub of Judge Chaskalsons piece. He tries, with facts, to destroy that notion. In other words, if he (Judge Hlophe) were to undergo the JSC nomination period, his transformation record should be seen as on par with everybody else. Nothing special.
An objective, or is it blinkered, analysis certainly creates the notion of a neutral, balanced article. But what are the undercurrents?
He mentions ‘ a Paul Ngobeni ‘. Now I can’t profess to have absolute command of the Queens language. However the use of the article a before someone’s name is meant to be derisory. Belittling. To be of no consequence. He further talks about ”a recent …Ngobeni and Professor Hugh Corder”. Respect noted. Subtleties.
Elsewhere he writes “ This is not the place……office” By “place” is he referring to the media, the article itself, or any platform outside the JSC?
What is the role of the JH alliance? By not mentioning them as part of a ‘campaign’ is that a tacit acknowledgement of the role the alliance is currently playing? A perfect counter balance against those who have been viscously opposed to Hlophe?
When he asks for Hlophes position regarding “a Ngobeni”, how does he envision this to happen?
Are the questions (which contrary to your view Prof I believe are the real conclusions) set to be a certain measure of the Judges character? A what did you do when these things were done in your name-Ring a bell?
My conclusions about the article are thus:
1.It perfectly assuages the interest of those in the white community. They should not see transformation as a hindrance for being part of the cc bench
2. Hlophe must remove this Ngobeni stain
Prof could you please provide a link to the article by the retired chief justice
Mdu:
I was joking. Let’s clarify: I still support what the Judge said regarding Hlophe and Ngobeni although I disagree with where he puts his X.
Dumisani, you’ve outwitted the learned judge, congradulations, now maybe you could remove the stain in your under garments when I tell you that one usually refers in legal documents to a Paul Ngobeni or a Dumisani or one Garg or one Ray in Afrikaans it’s die ene Paul Ngobeni ect. In other words I think you over exadurate the size of your dick.
Correction noted, Friend.
From reading the article, it is clear the judge doesn’t want to venture into any legal areas being contested in this matter. that is why there are no legalese.Which brings back the question, who is the audience? Legal scholars? General public?
What I fail to understand though is his fear to commit on the ‘campaign’ issue. Not once does he give an inclination of his view. Is it right for someone to campaign for a Judge? Instead offering a critique, he attacks the merits or pillars of that ‘campaign’. Why?
This is in any event convienient.
Dumisani, I believe the judge has reason to be concerned. He studied law, because he has an interest in the mechanisms that builds, guides and governs a society. He reads the newspapers and is aware of what is happening in the reality, there are many citizens who shares the same concerns and we should, because this is the principles that will guide our tomorrow. Now we both are born with a capacity to know what is right and what is wrong, but a judge usually goes through volumes and volumes of literature to research a justification for diciding in a certain manner and to do so objectively, surely sometimes a person makes a fault and this is human, but there is review and appeal for this for any discision even a discision by your insurance company to repudiate your claim because you forgot to add on the form that you stutter. The simple language movement has also played a part to keep the language these people use simple so that the man on the street could understand what they are saying, so this guy has didicated his entire life to dispensing justice in a way that the audience have no question as to the meaning, in fact he is probably one of the only people on earth who has mastered this art. This is why I say just forget sometimes to read between the lines and question motives and think about the future, take a paper and devide it in two with the pro’s and cons if the man’s words would be taken seriously, what implications would it have. You know.
Dumisani // Jun 26, 2009 at 8:10 am (pay attention Sperm/ Spam and Mdu)
[b]It perfectly assuages the interest of those in the white community[/b]
Mdu said
[b]Garg, you supported him because he is one of your own [/b]
Now
Dumisani says
What is the role of the JH alliance?
Where to begin….
The antics of Paul Ngobeni and JH alliance is very simple…..its called proxy wars and you 3 gents fall perfectly into this proxy war.
You have 7 out of the 11 judges of the high court and Concourt are black.
That is 63% BLACK.
Jeff redabe holds off the interviews for Concourt judges because of Transformation….63% are black clearly not black enough? give me a break.
How stupid are you people.
Paul Ngobeni getting released from the UCT is all part of this proxy war….I will bet you all the money in the world Paul Ngobeni was appointed for one purpose to the UCT and it makes sense why else appoint someone who is on the run from another country has now legal qualifications on south african law and well is slutting himself like a rusty whore whith Hlophe and JZ. The reason is to actually cause shit and thats what he has done.
Proxy War Achievements:
UCT has now be branded as white racists
JH alliance well is just branding everyone in the cape racist.
JH brands the Concourt racists.
ANC true war:
Now racism is being flung and the cape bar is a bunch of racists and the UCT is now a bunch of raving white devils hell bent on clinging to white KKK power on the bar and every white male hates black people.
but the truth is this
Superior Courts Bill = Parliament can make laws and the constitutional court my not review or over ride them.
Jeff Redabe is now in a position to pick and choose judges for certian cases.
There is also a bill to be released where Judges will go to a government judge school to be trained
Constitution Eighteenth Amendment Bill (CAB) and the draft State Liability Bill
all being pushed through behind the cover of racism.
What is going on?
Simple the embedded government of South africa gets its policies from the ANC.
The ANC can now make laws and not have them reviewed or over riden by the Constitution court.
Parliament becomes the sovereign power inturn makes the ANC Sovereign powered.
This makes Jeff redabe king as he can also appoint judges he fells fit for and place them to court cases where he feels like it.
The ANC will also be in power to train how the feel fit to train judges.
You dumisani and SPAM and Mdu fall so nicely into Proxy wars because really you guys seem to understand white people so well and that this hlophe BS has made him a victim of white racism and an under dog. When really in the first place its all about power for the ANC and actually got fuck all to do with racism.
For the record, I do not know anything about Chief Justice Chaskalson other than what the prof posted above. I am not aware of his race (or gender, I’m just assuming it’s a guy because his name is Arthur), so I could not have supported him because he is ‘one of my own’. And nobody here is aware of my race or gender either…
Again, read through Section 174 of the Constitution and imagine that Judge Hlophe is a Chinese transvestite. Now, judging Judge Hlophe based only on his actions and the artificial Constitutional crises he tried to create, and not on his race as a Chinese transvestite. Would he be fit for the bench?
My argument is that Judge Hlophe’s ethnicity does not matter. Even if he were Nhlophe or Umlungu or Umfasi, he would still not be fit to be Chief Justice in my books.
Do we not have other candidates, who are better equipped and who are more level-headed, who are not on the payroll of some company and who do not have enquiries against them due to complaints lodged by ‘one of their own’?