As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
I AGREE with the opinion held by many that Cape Judge President John Hlophe is an unprincipled and unethical person not fit to hold judicial office. However, I want to write about Hlophe’s phobias — his fear, contempt and discrimination against people living with HIV as well as gay men and, by extension, lesbians. This alone should disqualify him from a position in our Constitutional Court.
Hlophe allowed Christopher Moses “to get away with murder” because of HIV. The victim of a particularly brutal murder, Gerhard Pretorius was a gay man. Moses claimed he had a relationship with Pretorius and that, on the night of the murder, he and the deceased had unprotected penetrative sex for the first time. He also claimed that after the sex, Pretorius told him that he had HIV.
Moses’s defence, as stated by his psychiatrist, was that he flew into “an annihilatory rage” beyond his control. The state psychiatrist demonstrated that Moses could not have lost total control because the evidence demonstrated a sustained “complex and goal- oriented” attack. Hlophe should have found Moses guilty. The murderer’s personal circumstances indicated a reduced sentence would have been appropriate. Instead, Hlophe found that knowingly exposing a person to HIV was sufficient reason to murder them with an excuse of “uncontrollable rage”. He ignored the undisputed objective evidence of premeditation, including fetching two different knives to finish a murder and then setting about creating an alibi.
Hlophe’s decision constituted a licence to murder gay men with HIV. It could also be used by heterosexual men who assault and murder their partners. Eventually, the Supreme Court of Appeal (SCA) overturned Hlophe’s precedent and found it “a misapplication and a misreading” of its decisions.
Hlophe was to deal with HIV again during 2003, when a convicted person applied for a noncustodial sentence because she had advanced HIV-related illnesses and needed medicines. Hlophe ignored the 1994 precedent of the Johannesburg High Court.
In 1994, I started working at the AIDS Law Project. Mr C, a gay and HIV-positive prisoner at Pretoria Central Prison, was one of our clients — he had committed fraud worth R500000. His social worker, parole officer and the head of the prison had all recommended to the magistrate that his sentence for fraud be served in the community as a noncustodial sentence. An unreconstructed apartheid magistrate, with no understanding of the constitution or common law rights of people in prison, made both homophobic and AIDS-phobic remarks in refusing a sick man a community-service sentence. Denying Mr C community service, the magistrate said: “You brought this illness on yourself through your sexual conduct and you cannot escape your punishment through illness.”
Judge Monis Flemming, a former apartheid judge then of the Johannesburg High Court, reversed the magistrate’s decision. He held that in circumstances in which there is no proper care in the prison system, a custodial sentence is inappropriate for an illness such as Mr C’s. A custodial sentence would then constitute an additional punishment to one imposed by a court in ordinary circumstances. This view was confirmed by the SCA, when it overturned one of Hlophe’s most egregious judgments — the state v Magida.
In 2003, Memory Magida appeared before Hlophe. A single mother with advanced HIV illness, she contracted tuberculosis while in prison. She had a childhood that many of the poorest children in SA endure. She never knew her father and almost never lived with her mother. Between 1995 and 1999 she worked for six different employers.
Convicted of fraud, she showed remorse and pleaded guilty . She was sentenced to five years in 2001 and had no access to HIV treatment. On appeal from Bellville Magistrate’s Court, her doctors provided evidence that she needed treatment and could have access through a clinical trial at Groote Schuur Hospital. She could not access antiretrovirals in prison. This was at the height of the HIV denialism of the Thabo Mbeki era.
Hlophe demonstrated a lack of judicial compassion and a pro-business attitude when he refused the appeal, holding that “she was very lucky to get this kind of sentence”. Her employer’s financial loss was his sole concern. He demonstrated no understanding of the evidence before him — that she might never get a chance to hold her child again . In a curt judgment, his AIDS phobia illustrated in a previous case was confirmed.
“The appellant who pleaded guilty knew exactly what she was doing. When she is in prison she will still be entitled to receive her treatment. No case has been made out or no suggestion has been made that she has been deprived of treatment for her HIV status by relevant authorities. I am not aware of any good authority for the view that if someone is HIV-positive, he or she may get away with murder. In my view the sentence fits the crime. She was very lucky to get this kind of sentence for the crimes she committed. I would dismiss the appeal against sentence as being altogether without merit.”
Magida could have died in prison had the SCA not overturned his cruel decision, which was wrong in its facts and wrong in law.
The following questions should be asked of Hlophe : First, why was Moses allowed “to get away with murder” when he had consensual unprotected sex with another person irrespective of their HIV status?
Second, why was a single mother with advanced HIV sentenced to prison after she pleaded guilty to a crime in which there was no physical or mental harm to any person, on the legal pretence that Hlophe was “not aware of any good authority for the view that if someone is HIV-positive, he or she may get away with murder”.
Third, how could Hlophe be unaware of a decision of another high court, with almost identical facts, related to the crime committed by Magida, the case of Mr C , reported in law reports and in every HIV legal manual?
Fourth, Magida’s circumstances were worse than Mr C’s — she had advanced HIV disease, required antiretrovirals available only outside prison, and had a daughter. Did these facts not register with Hlophe?
Fifth, Hlophe must be asked whether he shares the view of the Justice for Hlophe Alliance on former chief justice Arthur Chaskalson. The alliance claims that Chaskalson believes nominations for the position of chief justice are “the exclusive preserve of a few white academics or gay rights activists”.
The alliance says: “We cannot leave the judicial nomination process an exclusively middle-class affair restricted to select special interest groups, including self-styled gay activists, in which there is no room for popular participation.”
Last, Hlophe should be asked about the enlightened local and international jurisprudence on sexual orientation. His view on the Delhi High Court’s judgment on decriminalisation should be canvassed. In particular, the following reasons to combat discrimination on the basis of sexual orientation by Delhi Chief Justice Ajit Prakash Shah: “The Constitution of India recognises, protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality.
“Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality … not public morality.”
Hlophe has demonstrated a deep AIDS phobia, with an underlying homophobia. His legal fictions on HIV and sexuality are in direct conflict with our constitutional values and are much closer to the views of an apartheid magistrate.