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.
Business Day published a very interesting debate between retired Constitutional Court judge Johan Kriegler and UCT Deputy Registrar and fugitive from Justice, Paul Ngobeni, about the present stand-off between Judge President John Hlophe and the Minister of Justice which neatly illustrates the difference between the two sides in this debate.
I have already commented on the absurdity of the arguments put forward by Hlophe’s lawyers and now repeated almost verbatim by Mr Ngobeni, so I will not take the time to demolish those argument again. After all, one can take a horse to the water, but one cannot make him think.
However, what forcefully struck me when I read the contributions of the two gentlemen, was the very different nature of the arguments put forward by them. It says much about the two ethical universes inhabited by these two men and points to the fundamental difference between those who try to defend alleged criminal or unethical behaviour by people like Hlophe and Mr Jacob Zuma by making process arguments, on the one hand, and those who argue for a higher standard of ethics in public life by referring to the substance of the issue, on the other.
Justice Kriegler’s piece contains a substantive argument regarding judicial ethics. He is very concerned not about one person but about the integrity of the system. He also seems to agree that the Minister has no legal power to order the Judge President to stay at home until the serious charges against him is dealt with, but nevertheless forcefully argues that this does not mean that Hlophe has a right to return to work. His piece is littered with what might seem like old fashioned words like “honour”, “conscience” and “duty”.
According to Kriegler:
Accepting appointment as a judge creates a special kind of compact with society. While we entrust our judges with great freedom in the performance of their functions, they in return accept the onerous duty at all times to be worthy of such trust. Judicial ethics is therefore not about the enforcement of obligations but about integrity, restraint and the protection of the moral authority of the judiciary. It is about trust….
The judge president has no more right to continue in judicial office than a suspected paedophile has to continue running a nursery school. Surely it would seriously undermine public confidence in the law enforcement system if a police station commissioner on bail for corruption were to remain at his desk pending his trial?
Ngobeni, on the other hand, fails to engage with substantive issues. His piece bristles with a kind of process indignation, suggesting that these gentlemen inhabit an ethical free zone in which their paranoia and sense of victimhood trumps any notion of honour, trust or ethics. Words such as “agenda”, “political bias”, and “disrespect” abound.
One can just imagine Ngobeni, nervously looking over his shoulder, fear in his eyes, as the dark clouds gather and the Dark Lord Sauron makes ready to strike again against the sad and disempowered victim called Hlophe:
His actions show disrespect for Mojapelo’s ruling and are inimical to judicial independence. Surty sees nothing wrong in allowing the losing judges to convert their loss into an instrument to sideline Hlophe from his constitutional duties……One needs no further evidence to see that Hlophe is a victim of political machinations. No wonder he continues to receive such overwhelming support from both black and white legal practitioners who care about judicial independence. He has taken a principled position in defence of the larger principle of judicial independence. Statements by some advocates and their speculation about why Hlophe chose to resume his judicial duties reveal a sinister agenda against Hlophe.
While both authors speak about the judiciary as a hallowed institution and talk about its independence, Kriegler speaks about the judiciary as something that is bigger and more important than the ego of one particular person. Ngobeni transforms this debacle into a personal issue about Judge President Hlophe and because he cannot really win an argument based on the substance, must conjure up dark forces and sinister motives in order to detract attention from the real issue, namely what is at this stage in the best interest not of ONE man, but of the system as a whole.
Who cares about South Africa’s democracy and the legitimacy of the judiciary within that democracy if one person believes that he has been the victim of a racist plot. Like Samson of the Old Testament who pulled the pillars of the temple in on top of himself, he seems to say that it is more important to protect one victim than to save the whole system.
I find this line of reasoning rather sad and troubling. Perhaps it is a sign of how sick our society is and how thoroughly racism has eaten away at the dignity, sense of community and pride of so many people in our country. In fact, I suspect Ngobeni’s argument has a whiff of racism about it as he really implies that because Hlophe is black and because he is paranoid enough to think everyone out there is out to get him, we should not hold him to the same standard than we normally would hold a judge to.
This comes close to making the deeply obnoxious argument that black people are not capable of the high ethical standards white people hold dear and must be held to a lower standard because black people are victims of the evil machinations of racists. In this world view, black people do not seem to have moral agency to take charge of their own lives and thus cannot decide for themselves how to live ethically sound lives – they can always only be victims.
I would have expected such an argument to be raised by a right wing racist. Coming from one of Hlophe’s champions, it suggests that people like Hlophe and Ngobeni have so internalised the racist bile out there that they can only react to it and can never really be free agents, can only ever be victims of white racism. In this world view, whites still control the world fully and in effect control what black people can and cannot do. If everything one does is in reaction to white racists, one is really not free at all. One is the prisoner of racism and one is destined to be its victim – no matter what. One can then never be the master of one’s own fate.
But sadly someone like Ngobeni (and probably Hlophe) cannot see how deeply troubling this posture of victimhood is. Nor can they see how it perpetuates racist tropes and how it perpetuates the notion that whites are really the one’s in charge of South Africa. Maybe I should send both gentlemen a copy of Steve Biko’s I Write what I Like. Who knows, this might help them to stop playing the victim and to engage with the real substantive issues facing Judge President Hlophe, the judiciary and also our democracy in these dark days.BACK TO TOP