It is clear that no legitimate objective is advanced by excluding domestic workers from COIDA. If anything, their exclusion has a significant stigmatising effect which entrenches patterns of disadvantage based on race, sex and gender…. In considering those who are most vulnerable or most in need, a court should take cognisance of those who fall at the intersection of compounded vulnerabilities due to intersecting oppression based on race, sex, gender, class and other grounds. To allow this form of state-sanctioned inequity goes against the values of our newly constituted society namely human dignity, the achievement of equality and ubuntu. To exclude this category of individuals from the social security scheme established by COIDA is manifestly unreasonable.
The Heads of Court (excluding the Chief Justice and Judge President of the Cape), issued the following statement:
Press reports in the recent past have highlighted comment by various prominent people seriously critical of one or other of the parties to the dispute between the Constitutional Court Judges and Judge President Hlophe.
This is a matter of concern to the Heads of Courts and the judiciary as a whole. Such comment assumes the truth of one or other version of the facts. When widely publicised, as it has been, it may well prompt or entrench unwarranted conclusions in the public mind as to where the truth lies. Understandably, the matter has aroused intense public interest but it is neither in the public interest nor fair to the parties to prejudge the issue. It will be for the Judicial Service Commission to deal with the matters as it deems fit. The Heads of Courts therefore appeal to all concerned to refrain from such comment or its publication and to allow the Commission’s process to go forward unimpeded.
My first comments on the matter might have been off the mark, because I assumed and acted as if Hlophe was guilty. But after my older sister (an ex-judge) chastised me for not keeping an open mind (one must always obey one’s older sister), I have tried very hard in my comments not to make any assumptions about the guilt (or innocence) of any of the parties.
Of course, it is difficult not to take side in this matter. It is even more difficult if one of the parties – John Hlophe – issues a blistering if slightly incoherent 71 page attack on the Constitutional Court, masquerading as a defense of his actions, and this is leaked to the media (by whom?).
If the statement of the Heads of Court is asking us not to prejudge the matter, it is a timely and correct intervention. If, however, they are saying we should not discuss this issue of utmost importance to our democracy and that we should not analyse what is happening, then they are wrong. We live in a democracy in which debate and discussion must always be preferred above shouting and threats.
The trick is to debate and discuss these matters without assuming the guilt of any of the parties. This is not an easy thing to do when at least one of the parties is such a highly polarising figure, but we owe it to our democracy to try.BACK TO TOP