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.
It would be easy but wrong – and probably counter-productive – to dismiss those who support the appointment of Judge President John Hlophe as Chief Justice as crazy, self-serving charlatans. It seems to me the issue of Hlophe has become a bit of a Rorschach test regarding racism, race relations, black consciousness and “merit” in our young democracy.
If we are to understand and deal with this phenomenon, an arrogant and dismissive rejection of those people who think Hlophe should be elevated to the highest court will merely reinforce the suspicion that anti-Hlophe sentiment is driven by racism and white superiority issues.
At first blush it seems perplexing that there are still people out there who think Hlophe should be serving on any court – let alone as the leader of the judiciary. After all, the Judicial Services Commission (JSC) has already made an adverse finding against Hlophe in the Oasis matter. Hlophe is also embroiled in an ugly spat with highly respected judges of the Constitutional Court, including Pius Langa who has a proud ANC history and Dikgang Moseneke who served time on Robben Island (unlike Hlophe who was not active in the anti-apartheid struggle and has handed down some shockingly anti-poor judgments).
If we give someone like Paul Ngobeni the benefit of the doubt and assume that he is not merely championing Hlophe’s case because of opportunism and self-interest, we may be better placed to understand the way in which race, a deep sense of victim hood and white arrogance influence those who defend and support Judge President Hlophe.
My thesis is a relatively straightforward one. We live in a racist society with an appalling history of racial discrimination and domination. Although we have experienced a dramatic and irrevocable political transformation and now live in a society where the majority of South African citizens (who happen to be black) have a decisive say in the politics of our country, the overwhelming social, cultural and economic influence of white elites anger many black South Africans, who are made to feel inferior and irrelevant by what they perceive to be this dominance of intellectual and social space by racist whites.
Steve Biko taught us that racism permeates all aspects of society and that racism is premised on the often unstated assumption that still dominates much of our thinking, namely that white=good and black=bad. We might think that we are not racists (who would own up to being a racist in South Africa in 2009 – except maybe that guy who used to fall off his horse and seemed to like parading in front of a quasi-swastika?), but many of us – black and white – are still the prisoners of this kind of thinking.
I suspect many of those who champion Hlophe’s case suffer from this kind of internalised racism. Because of the racism that permeates our society they have not been able to do what Steve Biko said all black people need to do to really become free, namely to free their minds of the invidious suspicion that the racists have a point and that black people are indeed inferior to white people and that Western culture is superior to African culture.
Add to this that there is a widely held perception – based to some extent on fact – that many white lawyers (and, dare I say, judges) consciously or unconsciously still harbour feelings of racial and cultural superiority, and it becomes more understandable that Judge President Hlophe still commands respect. After all, he is the guy who stood up to the racists in the legal profession with his racism report and is refusing to meekly subject himself to what is perceived to be a kind of racist lynching.
It is a bit like being in a relationship with an insecure person who secretly (or even unknowingly) suspects that he or she is not clever enough, or witty enough or beautiful enough to measure up to the partner. When that person’s successful or powerful partner then disagrees with him or her or criticises him or her, this is experienced as a personal insult and is deeply hurtful because it seems to confirm the doubt and insecurity of that person. The insecure person can only deal with this by attacking the other person, thus avoiding the need to confront his or her own (unfounded but deeply held) feelings of insecurity.
In such a universe, it becomes impossible to admit that Hlophe is ethically or intellectually flawed or that he lacks the kind of compassion and wisdom needed to be a good judge. To admit that fact would be to admit to yourself that those arrogant white racists had a point after all and that you might be lacking in intellect or compassion yourself.
As I have argued before, this kind of attitude ironically and tragically hands back the power to the racists. What the racists think or do governs what such people themselves think or do, imprisoning such people in a universe in which it becomes impossible to admit to the flaws of a black judge who had managed – despite apartheid-induced obstacles – to excel and prosper.
That is why I think Chief Justice John Roberts of the US Supreme Court was spectacularly wrong when he famously said in that court’s most recent affirmative action judgment that one only gets beyond race “by getting beyond race”. Ignoring the way in which race still shape our world view and our beliefs (whether we are white or black) will not help because it will merely perpetuate and further entrench the racial divide. We will continue to talk past each other. This will be comfortable because it will allow some to continue to argue that Hlophe’s detractors are racists while others would be able to hold firm that those who support Hlophe are crazy.
If we want to bridge this divide we need to confront the uncomfortable issue of race and racism head-on. This will not be comfortable or easy and it will not miraculously create a society in which we will all be able to sit around a fire holding hands and singing kumbaya. Those of us who think that the appointment of Judge President Hlophe to the Constitutional Court will be disastrous, must try and make our case in a way that does not perpetuate the view that we are animated by racism or arrogant feelings of superiority.
This is, admittedly, almost impossible to do. But identifying the problem and confronting it head-on might just open up a space in which real debate about the issues could flourish.BACK TO TOP