The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
The Sunday Independent reports that Dumisa Ntsebeza, the national chairperson of Advocates for Transformation and spokesperson for the Black Lawyers Association, has reacted to the John Hlophe saga by saying that, without knowing the facts, critics should remain calm instead of convicting Hlophe.
“We are aware, however, that judges talk to each other about matters they are dealing with, whether it is in their own divisions or elsewhere, so instead of calling for Hlophe’s head let us await the findings of the commission, which is the recognised body set up to deal with the conduct of judges.”
Which suggests that some of us asking that the President – acting on behalf of the JSC – should at the very least suspend the Judge President and that he should surely in the long term be impeached, are prejudging the case. We should wait for the facts before we assume that the Judge President has really tried to influence some of the judges on the Constitutional Court in the Zuma case.
Underlying this statement is, as always in South Africa, issues of race. Advocate Ntsebeza seems to be defending the JP on the basis that the facts are not yet known. I am sure other supporters of Judge President Hlophe would argue that those who criticise him and are assuming that he is the liar and that the judges of the Constitutional Court are speaking the truth are merely racists who always assume that black judges are corrupt or cabable of corruption and that the JP should be given the benefit of the doubt.
Although I understand why people feel defensive, this solidarity with the JP is misplaced and I fear is based on a wrongheaded view of transformation and how to deal with (the very real) racism in the legal profession and on the bench. It asks us to ignore the facts and to assume – despite the facts – that Judge President Hlophe is innocent until the JSC has made a definitive decision.
But we know that this case is so serious that the eleven judges of the Constitutional Court – a majority of them black – thought it appropriate to issue a statement about it and to make very, very, very serious allegations against Hlophe. We know that either he is lying or several judges of the Constitutional Court are lying. We know that Hlophe has a history of lying to us – he first said, for example, the money received from Oasis was for out of pocket expenses before it transpired that this amounted to almost R500 000.
In the light of these facts, people who support true transformation should tell the JP to step down because he has already shaken the trust in our judiciary to its very core. Advocate Ntsebeza is doing a disservice to the cause of transformation by sticking to a man that is so clearly and fatally flawed.
One can feel sad about this (because it seems to me like a real tragedy) and can berate those white commentators who seem to revel in the downfall of the JP, but one cannot possibly give him the benefit of the doubt at this stage without saying that the judges of the Constitutional Court are lying – which would be so earthshattering and shocking that it just cannot be possible.
Advoctae Ntsebeza’s statement is no less than a vote of no confidence in the judges of the highest court in the land and udnermines respect for this court and for the judciary. To treat their statement not as fact but as mere allegations which might be true or false is to suggest that they might be lying. This is shocking and wrong and must be condemned.
Those who keep on supporting the Judge President are doing our country a disservice. They should tell him that his time is up and that he should resign. If not for the sake of transformation, then at least for the sake of the country and our judiciary.BACK TO TOP