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.
Cape Judge President, John Hlophe, is a perfect example of what is wrong with our discussion about the transformation of the Judiciary in
As I have said before, it is very difficult to understand why Judge Hlophe is still on the bench. Most other people in his position would have resigned long ago – even if only out of embarrassment.
I suspect his tenacity has a lot to do with the discourse on judicial transformation in
I was (and I still am) of the view that some of the traditional lawyers and judges in the Cape have ingrained attitudes about “standards” and “competence” that emasculate new black lawyers and judges and that is really based on racist assumptions about white excellence and black incompetence. (No different from most other workplaces dominated by elite whites.) It is a subtle but devastating assault on the integrity of black lawyers and judges.
But the fact that some of the white lawyers and judges have deeply ingrained racist attitudes (without even knowing it) cannot excuse or justify wrongdoing by a black judge (or lawyer for that matter). By pointing out the racism, however, judge Hlophe made it very difficult for honest, reasonable and sensible people to criticize him because they would know that they run the risk of being tarred by the racist or anti-transformation brush.
It was a masterstroke in self-defense because it suggests that Judge Hlophe is the champion of transformation while those who think he should rather have not taken the
bribe “out of pocket expenses” from Oasis can be painted as anti-transformation. Given the fact that he had championed the appointment of especially black African judges to the
But this strategy is deeply problematic for reasons that go beyond the question of whether Judge Hlophe is fit to be a Judge or not. I contend that by employing this strategy Judge Hlophe displays a distinct contempt for true transformation as envisaged by the Constitution in at least two ways.
First, he discredits the very notion of transformation because he so blatantly uses it to gain a personal advantage. Like the boy who cried wolf, he trivializes the real problems of racism and resistance to transformation that is clearly present in the
Second, his approach completely misconstrues the nature of transformation itself. The
It requires judges to be attuned to issues of power as it relates to, yes, race, but also to class, and gender and sexual orientation. Replacing sexist, homophobic white men with sexist, homophobic black men does not constitute a true and complete transformation of the judiciary. How many of the new black judges appointed under Judge Hlophe embrace the values of openness, transparency and respect for difference so eloquently propagated by some judges of the
Maybe some or even most do, but this is not part of the discourse espoused by Judge Hlophe. When the ANC therefore said at their policy conference that the transformation of the judiciary should be speeded up, I hope they did not have in mind the kind of transformation represented by Judge Hlophe.
Of course more black judges and women judges should be appointed to the bench. But all the judges that are appointed should also have embraced the values of the Constitution. They should be individuals who reject the death penalty, cheer on the achievement of same-sex marriage and eagerly strike down patriarchal provisions in the common law and customary law. They should eschew narrow identity politics and should embrace the notion that diversity must be celebrated.
It is probably too late to change the values of some of the old style judges appointed before 1994, so it is exactly these newly appointed judges who have a duty to change the legal discourse. Sadly, on the available evidence, this does not always happen. Sadly, also, as long as we deal with transformation in the Judge President Hlophe way, this is not going to change.BACK TO TOP