It would be easy but wrong – and probably counter-productive – to dismiss those who support the appointment of Judge President John Hlophe as Chief Justice as crazy, self-serving charlatans. It seems to me the issue of Hlophe has become a bit of a Rorschach test regarding racism, race relations, black consciousness and “merit” in our young democracy.
If we are to understand and deal with this phenomenon, an arrogant and dismissive rejection of those people who think Hlophe should be elevated to the highest court will merely reinforce the suspicion that anti-Hlophe sentiment is driven by racism and white superiority issues.
At first blush it seems perplexing that there are still people out there who think Hlophe should be serving on any court – let alone as the leader of the judiciary. After all, the Judicial Services Commission (JSC) has already made an adverse finding against Hlophe in the Oasis matter. Hlophe is also embroiled in an ugly spat with highly respected judges of the Constitutional Court, including Pius Langa who has a proud ANC history and Dikgang Moseneke who served time on Robben Island (unlike Hlophe who was not active in the anti-apartheid struggle and has handed down some shockingly anti-poor judgments).
If we give someone like Paul Ngobeni the benefit of the doubt and assume that he is not merely championing Hlophe’s case because of opportunism and self-interest, we may be better placed to understand the way in which race, a deep sense of victim hood and white arrogance influence those who defend and support Judge President Hlophe.
My thesis is a relatively straightforward one. We live in a racist society with an appalling history of racial discrimination and domination. Although we have experienced a dramatic and irrevocable political transformation and now live in a society where the majority of South African citizens (who happen to be black) have a decisive say in the politics of our country, the overwhelming social, cultural and economic influence of white elites anger many black South Africans, who are made to feel inferior and irrelevant by what they perceive to be this dominance of intellectual and social space by racist whites.
Steve Biko taught us that racism permeates all aspects of society and that racism is premised on the often unstated assumption that still dominates much of our thinking, namely that white=good and black=bad. We might think that we are not racists (who would own up to being a racist in South Africa in 2009 – except maybe that guy who used to fall off his horse and seemed to like parading in front of a quasi-swastika?), but many of us – black and white – are still the prisoners of this kind of thinking.
I suspect many of those who champion Hlophe’s case suffer from this kind of internalised racism. Because of the racism that permeates our society they have not been able to do what Steve Biko said all black people need to do to really become free, namely to free their minds of the invidious suspicion that the racists have a point and that black people are indeed inferior to white people and that Western culture is superior to African culture.
Add to this that there is a widely held perception – based to some extent on fact – that many white lawyers (and, dare I say, judges) consciously or unconsciously still harbour feelings of racial and cultural superiority, and it becomes more understandable that Judge President Hlophe still commands respect. After all, he is the guy who stood up to the racists in the legal profession with his racism report and is refusing to meekly subject himself to what is perceived to be a kind of racist lynching.
It is a bit like being in a relationship with an insecure person who secretly (or even unknowingly) suspects that he or she is not clever enough, or witty enough or beautiful enough to measure up to the partner. When that person’s successful or powerful partner then disagrees with him or her or criticises him or her, this is experienced as a personal insult and is deeply hurtful because it seems to confirm the doubt and insecurity of that person. The insecure person can only deal with this by attacking the other person, thus avoiding the need to confront his or her own (unfounded but deeply held) feelings of insecurity.
In such a universe, it becomes impossible to admit that Hlophe is ethically or intellectually flawed or that he lacks the kind of compassion and wisdom needed to be a good judge. To admit that fact would be to admit to yourself that those arrogant white racists had a point after all and that you might be lacking in intellect or compassion yourself.
As I have argued before, this kind of attitude ironically and tragically hands back the power to the racists. What the racists think or do governs what such people themselves think or do, imprisoning such people in a universe in which it becomes impossible to admit to the flaws of a black judge who had managed – despite apartheid-induced obstacles – to excel and prosper.
That is why I think Chief Justice John Roberts of the US Supreme Court was spectacularly wrong when he famously said in that court’s most recent affirmative action judgment that one only gets beyond race “by getting beyond race”. Ignoring the way in which race still shape our world view and our beliefs (whether we are white or black) will not help because it will merely perpetuate and further entrench the racial divide. We will continue to talk past each other. This will be comfortable because it will allow some to continue to argue that Hlophe’s detractors are racists while others would be able to hold firm that those who support Hlophe are crazy.
If we want to bridge this divide we need to confront the uncomfortable issue of race and racism head-on. This will not be comfortable or easy and it will not miraculously create a society in which we will all be able to sit around a fire holding hands and singing kumbaya. Those of us who think that the appointment of Judge President Hlophe to the Constitutional Court will be disastrous, must try and make our case in a way that does not perpetuate the view that we are animated by racism or arrogant feelings of superiority.
This is, admittedly, almost impossible to do. But identifying the problem and confronting it head-on might just open up a space in which real debate about the issues could flourish.
Prof,
Those who claim that its racism that makes others believe Hlophe JP should not only stop being a jusge but be prevented from being a justice in the CC are racist in their own right. Followers of the blog would have read a range of compelling reasons by people of all races that state why Hlophe JP is not worthy of the title. The man is, simply put, a crook. If he were to be regarded as an exemplary black judge then i would never wish to be a judge.
The reasons are varied and mine are most certainly not based on race – I’m black too. There is no need to repeat them here. There are many good black judges (see most of the CC bench) yet one man has managed to make a question of ethics, one of race.
But of course, there are people who will sense racism where there is none and I can’t wait to read what they’ll say.
I think this is a very good post. South Africans by and large, on all sides of the race line, often seem to support a particular person regardless of their obvious flaws. When this is broken down into statistical analysis, you generally tend to find that it follows race lines, and sometimes tribal lines too, to an extent.
This is why people who are obviously flawed are still supported – events such as Tony Yengeni being carried shoulder high to prison as a hero for defrauding the taxpayer, Hlophe being lauded as a phenomenal judge depsite two (that we are aware of) horrific blunders (Oasis and the CC judges debacle), even JZ who is effectively guilty of a bilateral crime, and would possibly even be a convicted criminal now if the NPA hadn’t bizarrely decided to prosecute only one party in the bilateral crime.
The same goes for the other races – Rajbanji of the MF in Natal, who in my humble opinion is as slippery a politician as that Chabaan fellow, still commands support, in spite of the fact that he sold his constituents completely up the river when he jumped into bed with the ANC after the last provincial elections. Of course, don’t forget characters like that fellow who fell off his horse – the man was clearly misguided, but still managed to command support from people who, if you didn’t know they were supporters, would be considered completely normal, reasonable people otherwise.
Hlophe JP is, from what I hear, an incredibly astute legal mind, and a charming man. However, these are not the sole prerequisites for being a judge – one also needs to be ethical, and have an enormous appreciation of integrity. On this, he seems to have been found lacking. This is not racist, this is factual – his skin colour does not make him behave this way, it is how he is as a person – or is at least capable of as a person. This is problematic for me.
The reason that my comments will be deemed racist by some is not because they are racist, it is because it is the easiest weapon to fire when realisation dawns that there isn’t too much to argue about on the facts. So people bandy about the race card in the hope it will somehow shame the critic into shutting up, or at least turn the hearts and minds of the critic’s non-race groups against the critic.
I think that if anybody is accused of being racist in public they should be allowed to charge the accuser, and the accuser should be required to bring objective proof of that racism. Whether that’s feasible or not is another story, but it would certainly help to keep some of these idiots who shout racism everytime they don’t know what else to say quiet. And, who knows, when people aren’t constantly reminded about how racist everybody is, they might just get on with the business of building our country together, instead of watching over the shoulders. Maybe? Naive optimism?
Glad to see you using the word “merit” in scare quotes, Pierre.
You remind us yet again that “merit” is but a “social construct.”
Very helpful insight. Thanks!
“what is perceived to be a kind of racist lynching” – it is a rather unique kind of lynching given that the lynchee and the lynchors are by and large all black. One needs to weigh up the charactors of the actors in this movie and my scale tips easily in favour of Langa and Moseneke as regards integrity.
I’m often reminded of the experiment, which if I recall correctly was reported in National Geographic, of a man in the UK who carried out a study with 100 of his sheep. Thirty three he painted yellow, thirty three he painted blue, and thirty thee some other colour, the remaining one he left white. He then returned them to the pasture. Within a day he found that all those who were yellow were collected together, each of the other two colors did likewise, even ignoring previous associations and bondings. The one who had not been painted was ostracized, remaining alone and apart.
Surely, as intelligent human miracles, accepting that we are different than sheep, we can find a way out of normality and into a more constructive and dignified future.
As many have already indicated, one can distinguish between two issues being (a) the issue of racial tensions within the legal profession and (b), the question of whether Hlophe is of the ethical fibre required of judges.
The trouble is, as many have said, that the two issues are related in a fairly sensitive respect.
Black lawyers are understandbly concerned about some ways in which they are received in the business. And as the Professor has eloquently stated, this seems to inspire many to rally to Hlophe’s defence. Flying the flag for black solidarity as it were.
Now it must be clear that black lawyers, like any other lawyers, can serve as fine judges in terms of both intellectual application and character. But if we are to truly accept the position that no one race can lay proper claim to having the lion’s share of intellectual and ethical potential, surely we must accept also that as people, we are all of us vulnerable to the same human weaknesses. Weaknesses that are genderless, that strike at no one race in particular. In the light of this, does it not strike us as patently clear that Hlophe may just have fallen prey to the very base inclinations that challenge all of us every while or so?
So let me say this if at least some of you will have it so: racial divisions within the legal profession certainly deserve our very special attention. But Hlophe, given that as any man he is just a man, does not deserve special treatment.
Why is it that throughout the articles often reported on John Hlophe one seldom sees his academic achievements? After all we know Snuki (PHD Bulgaria). Why not Judge Hlophe (PHD Cambridge)?
Is it possible that the reverse of your article applies Prof? That in reality White people see this Black person who has made such achievements academically. He has managed through “apartheid-induced obstacles” to claim that space which white people had preserved for themselves. Now that he never went to exile but stayed in a squatter camp is a stain on his PHD.
Considering his current travails, why does it take a Black person to inform us that the very constitutional court has praised him for some of his writings? That a judge has been mesmerized by his elucidation of a particular legal matter? That some of the judges (and nobody is complaining) have actually been mentored by him?
Why is it so hard to articulate his probable pain on having to evict Joe Slovo residents, based on the interpretation of the law, considering that he grew on a squatter camp?
It is fair to say that in the coverage, white people have tended to be anti-Hlophe. When any good is highlighted, one can’t help seeing that that merely serves to create an illusionary “balanced article”.
Read how Richard Calland, a white man, attempts to restrain white folks. He clearly states that they are playing into Hlophes’ hand. Read how Judge Willis talks about his (white) culture as opposed to whose?
Read the condescending language used to describe Hlophe. “Daft, “who the hell does he think he is?” Visceral reactions. For whatever reason, there is a palpable hate of Hlophe from the white community. You can’t help but feel that opinion has been shaped against his further ascendancy in the judiciary. His willingness to be part of the constitutional court is seen to be gross. For a white person, that would have been seen as ambitious.
Too argue that white people dominate the social space is moot. A simple google will show you that most articles reported on Hlophe are written by whites. Even this blog. Nothing personal.
By the way, Hlophe has gone the professor route. What else should he aspire too?
Contrary to what some of the bloggers here may believe, as a black lawyer practising in Cape Town, I am NOT Hlope JP’s supporter. My arguments (which tended to favour Hlope JP, admittedly) have always been based primarily on the principles, particularly those of procedural fairness, regardless of who the person is.
However, there is a number of issues that I truly believe in:
1. Hlope’s report on racism did not win him any fans particularly amongst teh group that he accused as being racist. Naturally, they defended their position and instead overlooked the issues raised in the report and rather concentrated on the man raising the issues – talk of playing the man and not the ball.
From that moment on, we all know how the majority of the people he accused in that report have viewed the man.
2. I have never believed that Hlope JP’s decision to accept the money from Oasis was a correct one. In fact, I think he was way out of line. However, a consitutionally mandated body, the JSC, did not see it fit to declare the man “unfit to be a judge”. I would therefore have thought that all of us who claim to respect the Rule of Law and the Constitution would respect that decision and move on.
3. My issues on the spat with the CC judges are well documented. I have consistently criticised the MANNER in which the CC judges (esteemed as they are) dealt with the matter and I have criticised the JSC’s handling of the matter as well. Now, that’s got nothing to do with the merits of the complaint against Hlope JP.
I have consistently maintained that if the JSC (acting fairly and with no hint of any bias) finds Hlope JP guilty of improper conduct, I will be the first one to call for his removal from office.
My difficulty with people like Prof is when they elevate a complaint to some kind of a finding simply on the basis of the perceived “standing” of the accusers. That, in my respectful view, can never be correct. At this stage we have nothing more than just a complaint and therefore it is not proper for anyone of us to act and talk as if Hlope JP has indeed been found guilty in the matter with the CC judges.
4. I have mentioned somewhere that, unlike Ngobeni et al, I do not believe that Hlope should be considered for any of the CC position, certainly not at this stage. Let there be a finding on his matter with the CC judges and maybe then we can discuss his eligibility.
I’ve have on 3 different occasions had problems with this one fuel station near my workplace, a yellow one, and would not go there again.
The previous and last time, the attendant told me I could pay inside the store for fuel and anything from the store, but you need to understand that it was very, very busy as it always is, OK I may have over reacted slightly, maybe, but when the cashier told me that the attendant was wrong I demanded he give me the manager’s number so I phoned and after I reported the story, the manager also informed that I need to pay separately and instead of promising to train the attendants not to tell the customers what they want to hear, he asked me what the problem was, dismissing entirely what I’ve told him so that’s when it struck me that this guy is subtly accusing me of racism, a white guy. The previous time the mashine didn’t give me a slip, a printout, only one for the attendant the one I needed to sign so I did so and the attendant insisted the whole transaction be repeated, because I didn’t get a receipt to put in my cubby hole. I tried to explain to the manager, but I’ve already lost after I couldn’t repeat the simplicity of my problem so I left it.
My sister as well, thought she was Oprah Winfrey’s best fan at a stage and her domestic help almost split my family using her good faith as a weapon of mass destruction, I’m a fair observer and a South African, no matter what Filicia Mabusa wants to make me believe.
The way I see the reason for the white winers wining is not neccesarily based on their racism, remember a lot of them voted for change and democracy, some complain, because the system has let them down, the pharmacists losing their pharmacies after the very popular minister Msimang capped their profits, the highest income people pays 34% tax and does not get to report little pesky problems to the police when they are in need, never mind medical services or municipalities estimating what they owe them because their meters does not get read, because of the this: “you- have- to- prove- to- everyone- that- you’re- not- a -racist- and- until- you- do- I’m -leaning -backwards- in- my- armchair attitude” that was adopted by state institutions some time ago that is bending the mostly white folk over backwards. The thing is further if you calculate how much, in monetary terms, most of these whiners have contributed to the majority, towards education (my mother has dedicated her life to education, teaching in the townships way before apartheid ended, good education, teaching people to teach, biology, she is the best teacher that this world has never seen).
My money also goes to the state coffers, scuse the pun, but a sense of humor does not equal racism and just because you’re paranoid, does not mean they’re not out to get you.
Avery good and honest article Prof., but the likes of the Big Slipper really are racists as I am, and indeed Hlophe’s expose’ of racism in the Cape Bar and Bench rendererd him a nemesis of whites in the legal profession hence the witch hunt.
I have a proposal to make. The potential trouble is that I need the help of both the Professor and Mzo.
I ask for the Professor’s help because he seems to know the facts of Hlophe’s dispute with the Constitutional Court judges especially well. And I ask for Mzo’ assistance because he has on 18 June 2009 offered the most balanced and carefully reasoned account that could be construed as a defence of Hlophe.
Would the Professor kindly offer a brief statement of Hlophe’s own account of what transpired when he approached judges Nkabinde and Jafta? And thereafter would Mzo kindly say whether in his view Hlophe’s own version illustrates someone fit for judicial office?
And besides, what does it matter if any taxpayers are racist, does his/her voice make a difference besides to hurt some else’s feelings, it would rather be a justification for dismissing his arguments? We all know that a politician cannot be a racist but think if this is possible, for a second, would his ism not influence many people’s lives if a policy is put in place to strain certain classes or categories of people some more, wouldn’t it be significant?
Umm, Friend, what does all that mean? Actually, please don’t explain.
And where’s the pun?
The simple truth is that almost all adult South Africans are racists. Racists in the sense that issues of race inform our thinking, decisions and actions.
For me it is like being an alcholic or an alcholic who no longer drinks: firstly you have to admit to yourself “I am a racist”. Then you have to take it one day at a time, consciously striving against what you have inherited.
To move beyond issues of race is always an internal personal struggle and one which is never fully achieved; it is a struggle that requires conscious decision and effort and above all, personal vigilance. The struggle will only end with death.
Most South Africans have already travelled a long personal journey in this regard already, obviously with varying degrees of personal success. I can only hope that for some future generation such a journey will not be a necessity. It is possible that the personal internal vigilance and struggle of each of one us may eventually and finally set a future generation truly free.
his ism
Sarah, state coffers is a homophone, it sounds like a racially motivated terms that afrikaans whites called black people in general in apartheid South Africa.
Friend, that’s stretching the homophonic range for ‘kaffir’ to its limit and also reveals that, whether you think humour equals racism or not, racism is what your humour is mired in.
I know Sarah and I’m really trying to get humor elsewhere, I hope I don’t lose the humor and get stuck with only racism, but I admit that I found it funny, just a little while of course
That’s fine then. I was trying to work out why ‘state coughers’ would be funny, that’s all.
I used Microsoft Word thesaurus and it gave me an explanation for coffers, it’s tough boxes for money or stuff.
Wait coughers is also funny, I get it. Ha ha cough up, state coughers
Dumisani, thank you for your response. In my humble opinion it might well be that Hlophe is so disliked in some quarters at least partly because he is viewed as the archetypal “uppity black”. If he was a person who ingratiated himself with the white elite more, the visceral hatred against him might have been absent. But I think your defensive response rather provides an example of what I tried to raise in the post as you feel you have to defend the Judge President despite the fact that there are substantive issues which point to other rather damning reasons to be worried about Hlophe. These are: (1) He is not honest (in other words he is a liar) – first denying he received money from Oasis, then saying it was merely for “out of pocket expenses”, then admitting he received a R10 000 a month retainer from Oasis. (2) He is ethically deeply tainted, receiving money from Oasis and then in a clear conflict of interest granting Oasis permission to sue a fellow judge; (3) His actions – to some of us at least – appear selfish and self-serving (which is why I contrast the fact that while others sacrificed and took part in the struggle for our freedom, Hlophe struggled to benefit himself only). His actions have not always displayed the kind of respect for institutions, our Constitution and democracy that I would expect of an upright South African citizen. I think your post suggest that you are willing to forgive Hlophe these serious transgressions because he is clever and black. To me that seems to display a kind of thinking that it might be tempting to dismiss as racist because it suggests that we should hold black people to a lower standard than white people. Or am I wrong?
Can I ask something who gives a shit whether a judge is black or white? The whole racism talk round Hlophe is just revengful stragedy
This is the real problem that should be addressed is this: http://www.news24.com/Content/SouthAfrica/News/1059/0bf42afde62745ecb38fa6f9e176c29f/18-06-2009%2009-06/Phones_trip_up_court
“Various criminals, including suspected murderers, are currently on the streets because cases in the Wynberg Magistrate’s Court were scrapped due to telephones which have been out of order for months.”
Due to telephones? com the fuck on. What the hell did courts do before the advent of telephones?
Leigh, Judge President Hlophe said that he approached the two justices and admits that he discussed the Zuma case with Judge Jafta and that he said, regarding the privilege issue in the Zuma case, “you were our last or only hope”. In effect his defense is that Judge Jafta would not have been influenced by this statement so it could not have amounted to improper influence. But he does not deny telling Judge Jafta that he had to rule properly in this matter, merely that Judge Jafta had not objected to anything he said, so it had to be ok then.
The same goes for Judge President Hlophe’s explanation of his discussion with justice Nkabinde. He claims she had told him she was writing the note on privilege, contradicting the statement of the Constitutional Court, and admits to having put his case “forcefully” in favour of the Zuma position.
He also admitted to having said to one of the justices that he had “a mandate” but said this did not refer to the fact that he had a mandate to talk about the Zuma case but rather to the fact that he was asked to chair a meeting.
The heart of his defense is that there is nothing wrong with a lower court judge aproaching a judge from a higher court and talking about a pending case and even putting one’s views about that case “forcefully” to the person one knew was writing a note for the other judges about it. I quote from Hlophe’s submission to the JSC:
“It is very disturbing that a conversation conducted in chambers with other judges is now a judicial transgression which can legitimately trigger the process under section 177 of the Constitution. I believe that Judges should be independent and impartial and obliged to pursue their duties without fear or favor. I believe that our judges have all these qualities, but between them, there must be an intellectual interaction that can only fortify the sense of independence. I do not think a judge should be over sensitive and shy away from hearing a robust view of a colleague but still maintain the independence of thought and intellect. To elevate judicial interaction of this nature to misconduct for impeachment purposes will weaken our judiciary.”
I personally find it incredibly insulting to have my opinions on moral or ethical issues reduced to nothing more than the fact that because I am white, my thinking must be racist.
I do believe that everyone harbours certain prejudices, whether religious, race-based, cultural or class and as South Africans, we are particularly sensitive to those prejudices. However, I also believe that it is patently untrue that because we belong to a certain group, we are incapable of formulating a balanced and objective opinion on the behaviour of people from another group.
This desire to nullify the opinions of others because one can so readily put any dissenting opinions down to prejudice is prejudice of the worst kind. I refuse to believe that the black people of this country accept that their own people should be held to a lower level of accountability and morals than the whites. I refuse to believe that every white person in this country is anti crime, corruption and fraud purely because they do not wish to see black people succeed.
Judge Hlophe has not let the white people of this country down. He has let down the black people, who thought that they had a champion and a role model. He is not where he is because he is black, or because whites wish to see him fail. He is where he is because of his OWN actions and choices. Whatever commentary we make make on Judge Hlophe, had he not done what he did, we would not be having this debate about whether or not our disgust at his behaviour is racially motivated or not. Instead, we could all be praising his illustrious academic and judicial achievements. He brought this upon himself.
Leigh // Jun 18, 2009 at 9:53 am
Pierre De Vos // Jun 18, 2009 at 10:53 am
The last paragraph is exactly how I understand Hlope’s defence to be. Accordingly, I would expect Hlope JP to call, as some of his witnesses, some of the judges with who he has had similar interactions and discussions or at least those who, to his knowledge, have had similar discussions.
In fact, this is exactly what I understood him to be saying when he complained about the JSC imposing a list of witnesses that will have to be called. And this is exactly why I agreed with his complaint in this regard because for him to succeed with his defence (essentially that he saw nothing wrong with what he did because it’s a daily occurence) he needs to bring some witnesses that might back up his understanding of judicial “intellectual interaction”. Reading his submissions in his latest case at the South Gauteng High Court, it would appear that he does indeed have a list of these “senior judges” who’ve engaged in this conduct whom he intends to call as his witnesses – can’t wait to see who it might be!!
If it is indeed so that some of our judges ordinarily engage in some of these discussion, for me the issue would be bigger than just Hlope – it’ll go back to the whole question of exactly what ethical standards the judges should uphold. However, it will certainly mean that Hlope really can’t be impeached for doing what he did because he did what he believed to be acceptable conduct amongst judges.
It’s the same argument really that was used by those defending the publication of the complaint by the CC (prematurely in view) on 30 May 2008, to the effect that there were no rules or guidelines regulating the issue and therefore we should not blame the CC judges for acting the way they did. In other words, even if we subsequently view their conduct as improper we should forgive them, essentially, because they did not know any better. Similarly, if Hlope thought he was doing what was normal amongst judges, we really cannot castigate him. Instead we need to move the process of establishing Rules governing the judges’ conduct even faster!!
Thank you Professor.
Mzo, I truly hope you will engage with my earlier proposal. My reason is that of those who are not keenly critical of Hlophe, you seem to offer the most convincing argument given that you have drawn an intelligible distinction between Hlophe’s intellectual ability on the one hand (which, given his achievements, can hardly be called into question), and his ethical calibre on the other.
For convenience sake, I restate my proposal that you consider Hlophe’s own version as generously provided by the Professor and then argue as to whether that version denotes whether Hlophe is fit to be a judge.
Apologies Mzo, I did not see your most recent post until after I had posted mine.
I can’t and will not claim to know the inner workings of the judiciary. My understanding is that the JSC should be the final arbiter in matters regarding judicial conduct/ethics of judges in so far as hearings etc are concerned. Regardless of the thin margin the judge escaped (thats the predominant view) being found improper society sees (read white)him as guilty.
Suddenly it was not enough that the JSC had not lynched him (thereby confirming that the man is not proper) people had to go outside the JSC to convict him. The number crunching started. Who voted what? What was the racial split? Oh, a black person voted thus, so he/she is ours.
As for Hlophe, he remains a ‘liar’. Regardless of what the JSC says, he has failed according to our standard. He is staining this carefully cultivated order. Condemned.
After all who is he?
And then black examples will be portrayed. This is usually made to neuter any argument of racism against Hlophe. Judge Dikgang. Moseneke. Read the sanitized version of his credentials. Nowhere is it mentioned that he is a multi- multi- millionaire. Of course this doesn’t enhance the pro-poor discourse, so, leave it out. Moeletsi Mbeki writes that Judge Mosenekes’ company was mainly set up to prop the Oligarchs (White agenda??). Should I think about that every time he is found suitable to be the next judge? Mmh
What is patently clear for me though is that white people are shaping or trying to influence the agenda. Somehow this Hlophe issue is a battleground that must be worn. If we (white) fail, this country crumbles. The appointment of Hlophe will be the first indication that blacks have reverted to their culture (Black Continent).
I mean, how can one man bring down the judicial edifice? Do what all liberation movements failed to do?? Why is this black man not allowed to exercise ALL his legal avenues without derision? Why does the Cape Bar (White people) UCT lecturers (White people) concerned lawyers, Kriegler et al so anti Hlophe.
When two judges earlier found that Hlophes’ rights had been violated, Paul Hoffman SC (As awarded by Nelson Mandela) was so dismissive of the victory. He suggested Hlophe take the money. What contempt. He saw nothing wrong with a constitutional body violating the same rights it is supposed to uphold. Such was the hatred.
Lastly, these experts (no disrespect intended) fail to correct misguided opinions (thus serving white interest?), which eventually masquerade as the truth. I would have expected Tony Leon, as one of the people credited to have proposed the JSC format to defend its integrity. He can’t though, can he? After all which white person wants to seen on the side of Hlophe and Radebe in these trying black times in the judiciary. Pun intended. Oh, sorry, Hugh Corder tried on Monday to explain that the Minister cannot influence the JSC. The committee (Disciplinary) is dominated by lawyers. Guess which journalist is going to run with that? Nada.
Sirjay,
That’s an interesting esperiment you mention. Could you give us a source? There are many black sheep around and I’ve never noticed them being ostracised by the other (colour blind) sheep.
Dumisani, the sad fact is that the Judge President is a liar. This is not in dispute by anyone. If it was he would have sued those of us who have stated this clear, proven, fact. The fact that the JSC decided that his breach of ethics was not serious enough to warrant impeachment (it was misconduct but not “gross” misconduct, the JSC found) does not detract from this objectively proven fact. You seem to come close to suggesting that it is unacceptable to point out such a fact because of our country’s history with racism. My point is that such a view displays a mind that is un-free, one that is imprisoned by white racist discourse and cannot but respond to that racism in a certain way, regardless of the facts. That seems to me sad. A tragedy even. Have you read “I Write What I like” by Steve Biko? If not, do yourself a favour and do so. Biko was a wise and great man. Pity his voice is being drowned out in the new South Africa.
Pierre De Vos // Jun 18, 2009 at 1:34 pm
While you are at it Prof, please read “For Whites Only” by Charles Cilliers (if you have not done so already). Maybe, just maybe it might give you some perspective.
An interesting conversation is going on in the US as well, and it touches on the whole idea of race as criteria for making judicial appointments.
Supreme Court nominee Sonia Sotomayor it seems is more popular because of her race than any other reason.
I found a rather interesting article written by Patrick Buchanan on this topic, yes yes I know he is a neo-conservative and homophobic Christian right wing nut, but still interesting:
http://buchanan.org/blog/pjb-a-quota-queen-for-the-court-1555
Now I personally agree with Chief Justice John Roberts’ comments, race should stop being used as criteria of making any appointments never mind powerful positions such as a judge or God forbid Chief Justice of South Africa.
Hlope is probably the worst candidate for any positions in the judiciary. It will be interesting to see if Zuma awards Hlope a “thank you” for (allegedly) trying to advance his case.
Zuma would earn a credibility brownie point in my book if he does not appoint Hlope as CJ.
Mzo // Jun 18, 2009 at 1:44 pm
“For Whites Only” by Charles Cilliers is probably the biggest piece of crap I have EVER read!
It is basically just one big accusation over and over and over and over with him priding around with his liberal credentials.
Did not learn a thing form that nonsense he wrote.
George Gildenhuys // Jun 18, 2009 at 1:50 pm
As they say, truth hurts!!
Pierre, you have omitted one a crucial explanation for the continuing popularity of the JP. Call it the Leon inversion. The rules is that anyone who has come under sustained attack by Ton Leon is ipso facto worthy of support.. Note that it does not matter if he has also been attacked by black people. (See, e.g., Mugabe.) A sure ways to reduce support for the JP would be for Leon or Zille to emerge as his dogged defenders,
(A somewhat similar principle – the enemy of my enemy is my friend — is evident in SA foreign policy. Saddam Hussein, Iran, Castro the Burmese junta, North Korea, are worthy of a certain sympathy – because they are enemies of the U.S.)
Mzo // Jun 18, 2009 at 2:11 pm
truth?! PAH!!
Some of what he says might be true of the AWB. But him basically pointing the finger at all white people except himself is vile!
Samantha :Jun 18, 2009 at 11:33 am
You provide an interesting argument about the whole issue of Hlophe JP which has seemingly attracted issues of racism and the way in which Blacks and Whites perceive one another.
You seem to be unwilling to associate yourself with the view that one’s actions are influenced by his race. The following can be quoted from your argument: ” He is not where he is because he is black, or because whites wish to see him fail. He is where he is because of his OWN actions and choices.” I was particularly touched by the above quotation. It implies anti-racism and the willingness to build a non-discriminating South Africa. I entirely agree with you in this regard.
There is, however, another point which contradicts your argument. The following can be quoted from your discussion: “Judge Hlophe has not let the white people of this country down. He has let down the black people, who thought that they had a champion and a role model.” This argument confuses the reader and raises the question of ‘which side are you on’. It undermines other good points which you raised before. Just in time when I was about to endorse the whole discussion, this came on my way.
It is dissapointing to note that the whole argument is ruined by two sentences. It does not provide an answer which can be used in understanding the whole Hlophe JP saga although this might not have been your aim of writing the article. The argument is, therefore, unacceptable (or at least partly unacceptable).
Racism exists in the legal profession-FACT
Hlophe is not fit to be a judge-OPINION
The biggest factor that underlies privilege in the SA society is race. For so long that continues to be these issues will never die. For most black people, you face the future you face from birth because you were born black! One should never start on the false premise that the constitutional promise of a non-racial society means that racism has disappeared.
@ Wandaboy,
Thank you for your considered response to my post. I appreciate your candour and criticism and note your point with regard to the second sentence you quoted.
The point I was making was that John Hlophe is the epitome of what so many of our youth are (or should be) striving towards. He came from an extremely disadvantaged background and still earned himself an outstanding education for which he worked extremely hard. He rose to (almost) the top of his profession where he added real value in the fight for equality and the elimination of racism. This is the sort of person our youth should seek to emulate. And then the wheels fell off.
So close to the end of apartheid, our country needs real heroes and role models, particularly in the black communities. White role models don’t count because the perception is that they had all of the advantages that assisted them on the way up. So, we need to develop a culture amongst our youth of striving for excellence and maintaining it. Judge Hlophe was the “poster child” for the possibilities that exist through hard work and perseverance. He is living proof that despite everything that encumbered him, one can rise above it and succeed. And now, his legacy is tainted through his actions and he will be less well remembered for the good he did and his achievements, and more remembered for the “negative” issues.
Samaita, you are of course correct (in my opinion at least) when you say that race still plays an overwhelming role in the distribution of priviledge. If I was black I would probably not have been able to become a Law Professor.
But you start your post with what seems to me a false dichotomy, posing fact against opinion. Let me explain. It is my opinion that murder is wrong, that telling lies is reflects badly on a person’s character, that racism is evil, that unbridled selfishness is bad for the human psyche and for society, that taking money from someone and then doing them a favour when one is a judge is ethically despicable. These or not facts, but they are widely held opinions across cultures, races, continents and they are opinions based on fact. Fact is, killing someone hurts others (the person killed and her family and friends). Fact is telling lies hurt others and make it difficult to base one’s actions on what one is told. Fact is, taking money from someone and doing them a favour when one is a judge undermines legitimacy of the judiciary and is unfair to those affected negatively by the favour done.
The opinion that Hlophe is not fit to be a judge is also based on such facts: he is a liar; he took money from Oasis and then granted them permission to sue a fellow judge. Fact is, if we cannot trust judges to act in a fair manner, if we cannot trust them to be honest, then the legal system is negatively affected and the legitimacy of the judiciary is imperiled. Your post implies (but maybe I am wrong?) that it is ok for a judge to lie, to act in a dishonest fashion, and to take money and then do favours for the person from which the money was received because those who criticise the judge for doing these very bad things are mostly white and have enjoyed privileges because of the racist and evil apartheid system.. This seems to me a problematic argument to make as it fails to deal with the harm done by the individual (or excuses it) on the basis that other harm was also done. So maybe I should ask you: in your opinion, is it acceptable for a judge to lie and for that judge to take money from an organistion and then to make a ruling in their favour after receiving almost R500 000 from them? If yes, how do you justify this OPINION, given the FACT that such actions hurt others and destroy trust in the judiciary?
See, this is what I’m talking about Wonderboy, I knew what Samantha meant, but you would use each and every oportunity, without exeption to find a racial way to dismiss the critics opinion without having to build your own argument, because you’ve dismissed hers.
And further if indeed you could use those quotes to prove beyond any doubt that Samantha is a out right racist, what then? Another blogger bites the dust? Were your feelings hurt? did it make a difference? was it of any significance exept to justify your dismissal of quite a powerfull argument?
We are talking about people in powerfull positions here, positions that requires the absence of any prejudice, people who are exactly placed in their positioins because they have an ability to put prejudice aside when making very important issues, not a simple argument with a fellow blogger, do you get me sweetheart?
It is true that racism is everywhere. It is also true that everyone is entitled to his or her opinion. It is, however, unnecessary to voice your opinion in situations where there are institutions constitutionally designated to deal with the matter although your opinion may have some persuasive force. When referring to the fitness and properness (which investigates gross misconduct) of Hlophe JP, most bloggers tend to forget that this matter is to be dealt with ONLY by the JSC and the findings thereof to be referred to parliament for consideration.
The function of the public was clearly illustrated by Chaskalson P in the Makwanyane case and it provides the only acceptable basis on which the court or any institution can fulfill its constitutional duties within the framework of a supreme constitution. The following was said by Chaskalson P at para 88:
“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the courts to interpret the constitution and to uphold its provisions without fear or favour. If public were to be decisive there would be no need for constitutional adjudication.”
In order to function effectively these institutions must be independent and impartial. The public must,at least, have confidence in them and their decisions be respected. The public does have interest in current affairs and has the right to freedom of expression but it must guard against interfering with the work of institutions specifically designated to deal with such issues. To disregard the decisions of these institutions would undermine the role of the constitution and the importance thereof, the rule of law and the doctrine of separation of powers.
IN CONCLUSION, LEAVE THE HLOPHE JP SAGA TO THE JSC AND RESPECT THE DECISION OF THE JSC!!!
@ Sarah
As mentioned, I believe I read it in the National Geographic about 25 years ago. As you will realize, this was during apartheid and likely South Africans didn’t hear of it. I was in Canada at the time. He didn’t paint any of the sheep black by the way, only bright colors and I got the impression he did it as art, rather than as an experiment. He stated his surprise that they had grouped according to color, then suggested it was apparently normal in his opinion that creatures were drawn in groups to ‘sameness’ while rejecting difference.
I’m not trying to diminish the importance of overcoming racism with this recollection. I crossed the color barrier long ago and have four wonderful children as a result, regardless of significant racial disapproval which I still experience today. I was fortunate to be raised by truly non racist parents, non Semitic as well. Their only bias I ever noted was against ignorance and poor ethics. I also think a lot of what is referred to as white racism is actually disapproval of poor ethics as exemplified by Hlophe.
Friend // Jun 18, 2009 at 4:26 pm
I do get your point but I think you are the one who misunderstands my criticism of your friend’s argument.
I did accept that most of the argument was acceptable. I ONLY pointed out at TWO sentences which I think went out of the way. . Her argument was indeed so powerful in that it caught my attention. It was so unique and distinct. Initially I thought she blamed Hlophe for HIS OWN ACTIONS ONLY but further reading revealed that she also linked race to the issue(which I do not appreciate). Had she done this, I would have entirely agreed with her discussion and I would have declared her discussion the best in the blog. The criticism was not meant to imply that she was a racist and I think she fully understood that. I am therefore of the opinion that you INCORRECTLY interpreted my response to her. She herself had no problem with my criticism and I think she would be very dissapointed to note that you UNNECESSARILY came to her rescue! It is therefore advisable to take note of issues in dispute before you reply. Hope this satisfies you, sweetheart!!!
May anyone please forward me the link to the article that Hlophe wrote about racism in the legal profession? I would be grateful indeed…
Pierre De Vos // Jun 18, 2009 at 4:23 pm
Prof I have asked you before and I don’t recall getting an ansa from you, is it your contention that but for the money he received from Oasis Hlope JP would never have granted Oasis permission to sue Desai J? If so, exactly on what facts are you basing this?
It seems to me that you are confusing two issues here. On the one hand, the question of whether Hlope should have recused himself (which I completely agree he should have done) and, on the other hand, whether there was any basis for Oasis to be granted permission to sue Desai J.
If, as a matter of fact, there was a basis for Oasis to be granted permission, then your continued reference to “a favour” that Hlope JP did for Oasis is, at best, misleading and at worst, dishonest and disingeneous.
Mzo, your question is not germane to the issue at hand. The Constitutional Court stated that a judge has to recuse herself or himself where there is a reasonable apprehension of bias. If one receives money from a party to litigation there will clearly be such a reasonable apprehension so Hlophe clearly should have recused himself – it is ethics 101..
In any case the facts are as follows: Oasis placed Hlophe on a R10 000 a month retainer and asked him to give permission to sue Judge Desai. Hlophe did not give such permission for a long time despite several urgent requests from Oasis and its lawyers. Finally Oasis paid Hlophe a large amount (much more than R10 000) and a few days later Hlophe gave permission to sue. Whether it would have been possible for the state to prove beyond reasonable doubt that this was a bribe and that a criminal offense was committed I do not know. But given these facts, it is my contention that on a preponderance of possibilities the final balloon payment nudged Hlophe finally to give permission. The close link between the last large payment and the permission given really does not look good for the Judge President.
“Judge Hlophe is a liar.” So says Prof, and nobody seem to be disputing it.
I don’t understand why people would still want someone who has been shown to be a liar appointed to the Constitutional Court (or other top position) even if he is found not guilty of the current charges by the JSC.
Please somebody make me understand why they would want a proven liar to continue to be a Judge.
My father, a Rhodes Scholar of note once remarked to me, “it is only those Rhodes Scholars who did not complete the final year of their scholarship”, such as Bill Clinton, as the final year concentrates on ethics “who get in such trouble”. Those who complete the final year have inevitably gone on to greatness was his observation. “Those who have not, have been smothered by scandal,” he said.
@ Dumisani
“Guess which journalist is going to run with that? Nada.”
Dumisani, I would like to hear your comment on this one:
The latest report by the MRC about rape fingered a specific race group ito the perpetration of rape.
“There were significant racial differences in rape reporting, most notably men who were ( X ) were over-represented among those who had raped.”
Guess which journalist is going to run with that?
What happens to your theory if nobody does?
wondaboy, I hear you honey buns, just saying we should prioritize what issues gets dealt with first the racial one, the one thats looming anyway, the one that will always be there no matter how long we postpone it or the issue at hand the one that needs resolve the one, if it doesn’t, adversely affects someone’s rights. There’s always review or appeal if a party to a dispute’s feelings were hurt during the making of the descision.
<<>>
Pierre, assuming that your facts are correct, then it goes way beyond the judiciary. Truth is that in this time and place, the bench is all that stands to check the politicians. If the bench becomes generally corrupt then all is lost and we will be indisputably on Hayek’s road to serfdom.
Wandaboy, the comment on him being a champion of black youth and letting them down does not seem dirctly connected to him getting himself into the mess because of his own conduct.
Yes, he has let black people down because it gives those critics who are truly racist more reasons to discredit black leaders. He has let down the legal fraternity, as has Motata J, by his conduct unbecoming of a judge – esp. a Judge President.
You also say we must leave the Hlophe JP saga to the JSC. You should note that this thing is because Hlophe JP could not “hou sy bek toe” and decided to discuss matters, that were none of his immediate concern, with members of a judicial body with the attempt of influencing them. There is only a limited way one can interpret “forcefully” putting your point across. It is not an exchange of ideas but persuasion.
I read, I thing it was the M&G, that Zuma is distancing himself from Hlophe. Partly because he did not ask Hlophe to convince anyone of anything – remember that Zuma had lawyers for that…
So then, was Hlophe JP wrong to attempt to influence a court on so crucial a decision? I would think so, how many of the JPs have other judges trying to influence them or influence appeals and reviews by the provincial divisions (and WLD) as well as the SCA? If its common then maybe it should be allowed this time. A lack of guidelines or ignorance of them should not serve as an excuse for a leader (in any capacity or organisational structure) to behave in a manner which is very questionable.
Thanks Prof,
All I meant was that until Hlophe JP has been convicted by the JSC and they pronounce on his suitability for judicial office, my view and that of many others must remain a matter of personal opinion.
Prof, as late as this post is, I must congratulate you on an erudite article/posting. It goes far beyond the issue of Hlophe and looks at the challenge of building a truly non-racial society after centuries of formal racism within a global society that still perpetuates social and economic racism. There is one point I would like to raise to add to your polemic. You seem to be saying that because all of us, Black and White, are victims of centuries of racism (as well as the current divides) we are all racist to one degree or another. What does not come out clear is the obligation to change, especially based on who has benefitted more and who has power. The beneficiaries of colonial and apartheid racism were White people. Although they were also victims, because they were not able to access variety of thinking and cultures and therefore were stuck in a conservative puritanical world. But in the main on a social and economic level they were the overwhelming beneficiaries. The benefits they received still remain today. In fact, the structure of society from economic and social levels continue to reinforce and perpetuate these disparities. As Biko indicated, racism is an extension and application of power. Therefore there is a far greater obligation on the beneficiaries of racism to not only extend their hand of friendship and apology but also to visibly be a part of destroying the elements of society that reinforce these disparities. Many on these blog have exploited your statement that all South Africans are racist to some degree, without being honest and truthful about their benefits and how they accrued. This is not a victim mentality but a charge that we can build a truly non-racial society, but it requires a commitment from those in power, and the political platform is not true power in a liberal democracy.
I listened with interest to the debate between Pierre de Vos and Paul Ngobeni on SAFM this morning. I agree with Pierre that, for Ngobeni and other supporters of Hlope’s cause, it is more than a debate driven by logic and objective values associated with judicial office. I don’t think, however, that it is driven by mere emotion. Listening to Ngobeni, and looking at some of the comments above, one has a sense of a crusade, a do-or-die effort to vindicate Hlope and, by the same token, to defeat those who stand in his way. Of course it’s not just about Hlope but about racial polarisation. Given his track record, Hlope (despite his academic qualifications) is not the best embodiment of that which his supporters are trying to assert – but, for better or worse, the battle lines have been drawn around him. To try to discuss the pros and cons of his appointment logically is about as meaningful as trying to reason with soldiers going over the top, charging at the enemy trenches with bullets flying around them. In the end one is listened to only by the converted, while attitudes harden and divisions deepen even further.
Often, in such cases, only time (lots of it!) can bring about a sense of perspective. In the meantime there may be some questions that can sow seeds from which that perspective might grow. For example, what qualities do we really expect of our judges – all of them, black or white? What level of integrity, which standards of commitment to constitutional values? For example, is conflict of interest as manifested in the Hlope case acceptable, and need not prevent any judge (black or white) from being appointed Chief Justice? Personally I don’t think that this is what anyone is saying, exactly – but what are we actually saying?
Many – also among his opponents – have been impressed by the maturity and delicacy with which President Zuma and his team have set about addressing the painful divisions that have built up in recent years. There can be no doubt that the forthcoming judicial appointments will present a further challenge. We look forward to seeing how it is dealt with – hopefully with the same maturity and delicacy, that will help all South Africans to move on and look forward rather than back.
Donovan, what your commentary does not take into account is that, when the colonialists arrived, they were already, in terms of resources and technology, much richer than indigenous peoples. In that respect, the fact that whites today remain the richest grouping cannot be ascribed solely to exploitation. The current grossly skewed distribution is a legacy of an inequality that existed well before colonialism. The contemporary discourse of compensation and redistribution implies a baseline distribution that was just and roughly equal. But there never existed such an equitable starting point. The assumption that there was a time of Edenic equality is ahistoric mythology.
What must, of course, also be taken into account here is the dispossession – just a fancy word for theft – of the land by Europeans. That certainly cemented the colonialists’ huge initial advantage.
But the simple moral equation derived from land theft is somewhat complicated by two considerations.
First, the Nguni people had themselves over many centuries “stolen” the land from yet another group, subsequently nearly exterminated by the colonialists – the San. In a sense, what the whites stole from blacks Africans had itself been stolen by black Africans.
Second, it was not entirely a one-way exchange between the colonialists and Africans. The fact is the latter gleaned from the former the cultural tools and technology of modernity. They also received perhaps the most important cultural tool of all – written language. The latter is an utterly indispensible requisite of modernity – more valuable by far than any fixed asset, like land.
So what does all this history have to do with modern misdistributions and the injustice thereof? Probably not that much. But it does illustrate that, if you choose to mine moral lessons from history, you risk running into complexities that muddy the simple good/evil dichotomy that constitutes the conventional wisdom.
Donovan, thanks for your considered response. I wholeheartedly agree with your point. White people have a special duty (I think) to show some humility and to own up to both priviledge and racism. Some would go further though and say because of apartheid white people have no role to play in South Africa and should not engage publicly about issues of the day. In effect this view implies that any criticism of a black person by a white person is racist. I disagree with this. It seems to me all citizens have a right and a duty to speak out against injustice and abuse of power. How this is done is of course another matter. Whining on about “them” doing this or that is really not helpful and only perpetuates the notion that all white people are irrevocable and unreconstructed racists.
My family owned land and sold the land exept for the miniral rights that inherited onto the children the other siblings spend all their inheritance and not even the most rediculous ligislation will be able to see a cent of it, but my family created a trust and the property of that trust will be in it’s estate forever. Is this fair people, that one day I just get money from someware even if I become a bum, wearing a yellow reflective over coat and demanding money form people or I scratch their paint jobs? Is it fair must I hand it over because my family is clever, must we give it to dumb families, what?
where, somewhere