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.
Maybe all this goodwill, peace, love and happiness generated by the World Cup in South Africa have finally turned my brian into a mushy pulp. (Miss World contestants must be horrified by the World Cup: with all this love and peace going around they must have nothing left to do but look pretty and sniff listlessly at the salad leaves on their lunch plates.) How else to explain the sudden thought, which popped into my head this morning, that I am missing Judge President John Hlophe and his ethically challenged sidekick, Paul Ngobeni?
It has been several months since the Judge President has done anything controversial, reactionary, ethically dubious or even newsworthy. Meanwhile, Ngobeni has seemingly been too busy giving the Minister of Defense bad legal advice to call me a racist and a pervert or to utter spluttering denials about ever having been disbarred as a lawyer in the USA.
Oh, how I miss our very own Tweedledum and Tweedledee!
Of course, several legal challenges are in the pipeline to try and overturn the absurd and illogical decision on Hlophe by the Judicial Service Commission (JSC) last year, so we might still hear from Tweedledum and Tweedledee in the next few months. The JSC, as you might recall, decided to avoid any investigation of the complaint lodged by the judges of the Constitutional Court against the Judge President, because such an investigation would have forced the JSC to decide whether Hlophe or the judges of the Constitutional Court were lying through his/their teeth. If there was one thing the JSC wanted to avoid at all cost, it was discovering the truth.
Nevertheless, now that the dust has settled somewhat, it might be appropriate to reflect on why the JSC made their patently absurd and indefensible decision and why the case seemed to have split the legal community, largely along racial lines.
The first question seems the easiest to answer. A political decision was taken by the Zuma administration to protect Judge President Hlophe – perhaps because he was accused of trying to protect Zuma and he was being rewarded for his zeal and initiative in protecting the Dear Leader from criminal prosecution. (Not that it was necessary, what with the National Prosecuting Authority doing the protection.) The JSC was thus loaded with pro-Hlophe supporters by President Zuma, which enabled a majority of its members to avoid making a finding that either Hlophe or the judges of the Constitutional Court were liars.
The second question is more perplexing. Why did seemingly good people (I am not including the opportunists, charlatans and crooks who came out to bat for the Judge President) keep quiet or offered support for the Judge President? Why were they almost exclusively black, while those who insisted that the truth be determined were almost exclusively white? Why did the tactic deployed by Hlophe and his storm troops to racialise the issue (despite the fact that the overwhelming majority of accusers were black themselves) succeed so brilliantly?
I suspect the answer to this question has much to do with the lack of racial transformation of the legal profession and the consequences of a particular legal culture that exacerbate racial divisions. More than 80% of practicing advocates and attorneys are still white (and in Cape Town this percentage must surely be much higher). Moreover, lawyers (of all races – Seth Nthai hi there!) are notoriously egotistical and arrogant and ready to gossip about, and belittle, their fellow lawyers. They love to snigger about the stupidity and ignorance of colleagues and of judges and often do so in a sneering and sarcastic manner.
In the absence of a fundamental change in briefing patterns, many white attorneys still only brief white advocates with whom they grew up, went to university with or drink and play golf with. Some of these advocates are brilliant and some are rather mediocre but in a kind of reverse affirmative action the mediocrity is overlooked while the potential brilliance of young black advocates are sneered at or dismissed. This is unjust and scandalous, but because of the way in which the legal profession is structured it is not easy to change.
Let’s face it, if you are a brilliant young black lawyer starting at the Cape Bar, your chances of being briefed by anyone but the state lawyers is rather slim – unless you have demonstrated that you are a good coconut and is white in all but skin colour. Judge President Hlophe did not create the racial divisions in the legal profession – he merely skillfully exploited it for his own selfish gain.
In this kind of atmosphere, it was very easy for Judge President Hlophe and his cronies to appeal to racial solidarity or to silence some black members of the legal profession, who feared they might be associated with the racists and the anti-transformationists in the legal profession or might alienate their potentially biggest client – the state. Support for a full investigation of Hlophe was seen as support for the sneering and arrogant white lawyers who make cynical jokes about the intellect and ability of even the brightest and most brilliant black advocates and judges.
One therefore had to be exceedingly brave and strong (or perhaps foolhardy) to be a black lawyer supporting a full investigation of the serious allegations against Hlophe.
So, while I have been a sometimes harsh critic of Judge President Hlophe and his cronies, I would argue that the disastrous turn of events, which led to the failure of the JSC to investigate the various allegations at all, can at least partly be blamed on white lawyers who have not always shown the necessary understanding for the urgent need to transform the legal profession. Is the legal profession doing enough to change briefing patterns and to transform the legal profession? Surely not. And if they do not take drastic action on this front, the legitimacy of the legal system and of the judiciary will be further imperiled.
When a white judge makes scandalously patronizing statements about black judges or lawyers, white lawyers and judges must speak out. And when a black judge acts in a way that suggests he or she is a crook, black lawyers must insist that he or she should be fully investigated.
But at the moment this does not seem to happen as racial solidarity seems to trump everything. The more transformed the legal profession becomes, the easier it would become for the good men and women of all races to stand up and insist on the upholding of high ethical standards in the profession and in the judiciary.
When this happens, a lawyer or a judge who is accused of taking a bribe, of drinking one cup of “tea” too many, or of scandalously overcharging clients will not be able to garner support from a block of lawyers merely because he or she belongs to the same race.
Until then we will have to cope with the antics of the Tweedledums and Tweedledees of this world.BACK TO TOP