An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Judge President John Hlophe will probably return to work on Monday before jetting off to Johannesburg at the end of the week to be interviewed for a position on the Constitutional Court. The media will focus heavily on his interview because the Judge President is the story that will sell newspapers. The suspense! The drama! The liberal (newspaper buying public’s) outrage! Will he or won’t he make it on to the list of JSC nominees sent to the President for appointment, they will ask.
To some degree this is inevitable, given the fact that for many different reasons (some sound, some deeply problematic) Judge President Hlophe excites passions in our fractured body politic that makes for great drama and suspense.
I am, of course, one of the individuals who feel that Hlophe is not fit for judicial service on any court (let alone the Constitutional Court) and have set out my extensive and cogent reasons for this on many occasions. I am, of course, also aware that not everyone shares my view.
There are individuals on both sides of this debate who seem to have a messianic obsession with Hlophe (some would say I am one of them).
On the one hand there are those who have formed the firm belief (without providing the necessary evidence) that Hlophe is a victim of a racist conspiracy (by the black judges of the Constitutional Court) and that he should be appointed to the Highest Court because he is allegedly a champion of (racial) transformation, is allegedly a person deeply concerned about the plight of poor and marginalised South Africans (like the Joe Slovo settlers he ordered moved from their homes), a person with a brilliant legal mind (if a rather vague understanding of ethics and honesty).
On the other hand, some individuals (without even always realising it) see Hlophe as a symbol of what is wrong with ANC governance in South Africa (with which some of them mean black-led governance) and view the way in which the JSC has now twice let Hlophe off the hook for conduct that might well have constituted “gross misconduct” (although we will now never know for certain) as a scandalous abdication of their legal and ethical obligations and an ominous sign of how our institutions have become infected with what Minister of Higher Education and SACP leader Blade Nzimande last week called a “narrow Africanist chauvinism”.
If one happens to have been born with less melanin than fellow countrymen and women and one happens to agree with Nzimande (as I do) about the dangers of “African chauvinism”, it is rather difficult to express such an opinion, exactly because one would be grouped with the racists who yearn for the return of the “good old days of apartheid” and who see John Hlophe as a symbol of black incompetence and corruption.
This reminds us that for most South Africans (of all races) there can only ever be two sides to a story: the “white” side and the “black” side. Escaping that dichotomous logic seems rather difficult if not impossible to do. How do we escape this narrow and stultifying “them” and “us” world, a world of hatred and fear, envy and arrogance, conspiracies and plots?
This might come as a surprise to some readers, but I have come to wonder whether one way of trying to get beyond this corrosive, race-bating, stupidity, is not to shrug it off and laugh about it before moving on to real issues confronting ordinary South Africans. How many poor people who are worried whether they will have food on the table tonight, actually care about John Hlophe and the fools on the JSC?
I am not saying that the question of who serves on the Constitutional Court does not indirectly affect poor people. Of course it does. So, by all means, let us talk about the qualities we think a person should possess to serve with distinction on our highest court. Let us put forward names of highly qualified, progressive individuals with impeccable integrity who may just make a small difference to the lives of ordinary South Africans.
But it would, perhaps, be wiser not to bestow legitimacy on either the “Africanist chauvinists” or the racists by focusing on the candidacy of one man: John Hlophe. There are four openings on the Constitutional Court and it is important that these openings are filled by progressive judges.
In this debate about who is progressive, who cares about the poor, who has integrity and wisdom, John Hlophe is an unwelcome side-show. If we look at the bigger picture, we must surely acknowledge that he really is not that important: just one tragic and deeply flawed guy whose struggles have allowed us to be side-tracked and to take our eye off the ball.BACK TO TOP