Quote of the week

Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

Justice Albie Sachs
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
11 October 2008

Why is Ngobeni arguing for Hlophe’s impeachment?

I always thought Paul Ngobeni was a supporter of Judge President John Hlophe and that he really, really did not want to see the Judge President impeached – regardless of whether the Judge President may have been guilty of gross misconduct. I am therefore rather perplexed by his argument that the Constitutional Court judges should be impeached for gross misconduct as his argument (probably inadvertently) can also be applied to the Judge President himself.

Ngobeni argued that the proper procedure that the Constitutional Court judges should have followed when it complained of the alleged attempt by the Judge President to improperly influence some judges of the Constitutional Court was first to submit to the Judicial Service Commission (JSC) a written statement or complaint, made under oath, outlining all the allegations.

The JSC would then give the “accused” person an opportunity to defend himself. It is only when the accused is “found guilty” of the alleged offence that the matter can then be made public. The rationale for this approach is simple — it ensures that those accused, and by virtue of their standing, are not unduly prejudiced by untested allegations against them, and that their integrity should remain intact pending the outcome of the inquiry.

Judicial independence requires nothing less than that — a judge should not be driven from the bench by a lynch mob based on mere gossamer and unproven allegations. Anyone violating that precept commits “gross misconduct” under our Constitution…

It is gross misconduct for any judge to issue statements geared towards provoking public condemnation of another judge or making it untenable for that accused judge to continue service as a judge. They knew the principle that a judge is removable only for cause, and that cause must be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard.

I do not agree with this argument. But if, for the moment, one would set such niceties aside and take Mr Ngobeni at his word, he is in effect arguing that Judge President Hlophe is also guilty of gross misconduct and should therefore also be impeached.

There are several reasons for this. First, Judge President Hlophe prepared a report on racism on the  Cape High Court bench and at the Cape Bar in which he made serious allegations of wrongdoing against fellow judges. This report was leaked to the media and was widely discussed without any complaint being laid at the JSC. These judges were never given a hearing by Hlophe, so on the logic of the Mojapelo Judgment, the Judge President had infringed the right to dignity and equality of these white judges. Sadly Ngobeni did not argue at the time that the rights of these judges had been infringed, which may lead one to believe that he is less interested in the noble principles he purportedly wish to uphold, than in trying to help extricate the Judge President from a very sticky situation.

Moreover, when a complaint was laid against the Judge President by the judges of the Constitutional Court,  Judge Hlophe hit back, making extremely serious allegations against the judges of the Constitutional Court in media statements, through statements by his lawyers, and in his papers to the High Court. Once again he failed to give the judges of the Constitutional Court an opportunity to provide their side of the story before he went public with these untested allegations.

If we follow the logic of Ngobeni, this amounts to gross misconduct and warrants Judge President Hlophe’s impeachment. After all, what is good for the goose is good for the gander.

But I suspect Ngobeni would not like this conclusion because he does not believe that all (judges) are equal before the law. The rules that he says applies to the Constitutional Court judges somehow do not apply to Judge President Hlophe. It cannot be because Hlophe is black and the judges of the highest court are white, because most of the Constitutional Court judges are also black, so there must be another reason for this double standard. Can’t imagine what it might be.

If Ngobeni’s logic is followed, Hlophe should not have made any press statements and should not have launched a court case against the Constitutional Court judges, but should first have invited the judges to provide their side of the story, and should then have lodged a (secret) complaint with the JSC who then would have had to deal with the matter (secretly). By failing to do this, according to Ngobeni, Hlophe must be judged guilty of gross misconduct and should be impeached.

I am also rather amused to note that in his most recent missive Ngobeni seems to take a swipe at yours truly. He is not happy that I questioned the abilities of Hlophe’s lawyers (maybe because he advised said lawyers?), stating that:

Even Hlophe’s highly competent lawyers were not safe from the self-anointed “constitutional experts”, who launched vitriolic personal attacks on them simply because they are black. It was alleged that Hlophe was “fishing on dry ground” and his legal team vilified by these “experts” as less competent than second-year law students whom, the “expert” said, he would not hire even to get him off a traffic offence. It was boldly predicted by these esteemed legal minds that Hlophe would be “laughed out of court”.

Well, I suppose there is only one thing worse than being attacked and that is being ignored. I am rather impressed with Ngobeni’s ability to read my mind and to confidently assert that I questioned the abilities of the said lawyers “simply because they are black”.  In fact, he is so good at this that he discovered something about my state of mind that I did not even know myself. Brilliant! Of course I did actually provide reasons for my assertion that the papers filed by Hlophe’s lawyers were not up to scratch, but hey, why engage in reasoned argument about the merits of the papers when one can smear somebody as a racist.

I must be very naive, but I would have thought it would have been extremely patronising and racist of me if I  had lauded Hlophe’s legal team for their excellent work or had refrained from giving my honest opinion about the quality of their papers and their arguments, based on my reasoned interpretation of the law, merely because the lawyers involved were black. I am not one to perpetuate the racist bigotry of low expectations and hence I will criticise people (especially powerful, well-regarded and well-payed people like Hlophe’s lawyers) if I think they are not doing a good job – regardless of their race.

But perhaps Ngobeni is saying that a white person like myself can never criticise a black person because this will always constitute racism. I would disagree. Although I strongly believe that as a white person I have a special responsibility to be sensitive to the ingrained racism in our society and that I should be careful not to perpetuate stereotypes of black people as inferior or incompetent, I believe it would be extremely racist and patronising not to criticise rich, powerful black people if I honestly believe that they did not present a good argument and I can substantiate that in a reasoned way.

The kind of attitude seemingly espoused by Ngobeni would not be in the spirit of Steve Biko and would endorse a kind of mindset which says black people cannot talk and think for themselves and – no matter who they are – will always remain powerless victims unable to withstand the rough and tumble of honest debate. This would be extremely insulting to people like Mr Ngobeni or Hlophe’s lawyers and I, for one, would have none of it.

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