Quote of the week

Mr Zuma mistakenly assumes that loyalty to the ANC is synonymous with loyalty to him. His assumption is both factually and constitutionally untenable. Falsely or erroneously, Mr Zuma believes that his recall as President was against the wishes of the ANC. However, it was the ANC NEC itself that insisted on Mr Zuma resigning as President of South Africa. Furthermore, it is not only the wishes of the ANC that matter. Mr Zuma offers no evidence that the people of South Africa were opposed to his recall. The people have an interest in what goes on in the ANC not least because it is the majority governing party.

Judge Pillay
Hanekom v Zuma (D6316/2019) [2019] ZAKZDHC 16 (6 September 2019)
9 June 2008

Hlophe – here we go again…

An extremely depressing statement by one KE Molema of the Black People’s Convention (BPC), published in The Sowetan this morning, makes for interesting reading. As I predicted would happen, they are trotting out all the race-based arguments in defense of Judge Hlophe. What a wonderful piece of writing…

We suspect [Judge Hlophe] has never been forgiven for telling certain white people that if they can’t come to terms with the reality that this is a black country and that black people will increasingly take over the reins of power, they should go back to where they came from.

Hlophe’s statement is viewed as an unforgivable act of treason for which one is sentenced to death – if not by burning at the stake then by character assassination. Our suspicions are strengthened by what appears to be well-synchronised and very loud calls for him to step down, mainly from the white legal fraternity. What happened to innocent until proven guilty?

We are told that judges can apply the law without fear, favour or prejudice. Now how ludicrous to hear that the judges of the highest court in the land are complaining of having been sought out to be influenced improperly!

What did he do? Offer them bribes? Knowing how the system works we suspect foul play and think Hlophe is being made a scapegoat. An investigation into judgments he has delivered might yield a clue.

What is most depressing about the statement is the spectacular lack of comprehension about ethics – judicial or otherwise – displayed by the learned author. He seems to think that there would be nothing wrong with a judge of one court trying to put pressure on judges of another court to rule in a certain way because judges are not supposed to be influenced by such pressure.

What he does not seem to understand is that – if the allegations against Hlophe are proven to be true – it would reflect a shocking and preposterous lack of ethics on the part of judge Hlophe. The question is not whether the attempt at improper influence would have been successful, but whether it was made.

City Press reported yesterday that Judge Hlophe approached two of the judges of the Constitutional Court in their chambers and told them that he was “going to be the next chief justice”. According to the newspaper’s source “[h]e basically told them … ‘there will be a lot of changes in the judiciary. You must think about your future’, before telling them to rule in favour of Zuma.”

If this is true, judge Hlophe would be guilty of the grosses form of misconduct because it would mean that he was in effect threatening other judges to decide a case in a certain way. This would make Judge Hlophe not only astonishingly stupid but also corrupt to the core. That the BPC cannot see the problem with this reflects very poorly on their grasp of ethics. Don’t they have any moral compass?

Can’t they understand that trying to put pressure on judges of another court to decide a case in a certain way is so astonishingly inappropriate that it would make the Judge President unfit to sell second hand cars, let alone be a judge on any court in the world? Or are they merely supporting him because he once exposed racism in the legal profession? If it is the latter, it would mean they would support even the most heinous and criminal activity as long as the perpetrator once pointed out racism somewhere in South Africa.

This is race demagoguery of the worst kind and should be insulting to all black people in South Africa because it suggests that black people need not adhere to basic ethical principles and should be measured with a lower standard than white people. I can’t imagine that Steve Biko would have approved.

But we do not, of course, know the full story yet. It is rather unfortunate that the judges of the Constitutional Court made public their complaint before they had actually drafted written submissions about it and handed it to the Judicial Services Commission. In the absence of more information this kind of rumours will abound and it all contributes to the damage of the integrity of the judiciary.

I think the Constitutional Court erred in making this statement before they had all their ducks in a row because in cases like this (and given the inevitable racialisation of the complaint by those who would never believe that Judge Hlophe could do anything wrong), the judges should have anticipated a backlash. They should therefore have waited until they had finalised the full complaint before going public with it.

Where I strongly differ with defenders of Judge Hlophe is with their argument that merely by making the complaint they had tarnished the reputation of Judge Hlophe. First because any complaint will have to potential to tarnish the person who are accused. Second, because it presupposes that Judge President Hlophe had any reputation to damage.

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