The F-word: Hlophe deserves fair treatment

2011-06-04 09:18

Like many South Africans, ­especially those who use or have relatives who use trains to travel to and from work, I was shocked to hear of the accident between two Soweto ­stations in which nearly 860 commuters were ­injured last month.

But I was tempted to accuse the unions of being spoilsports when they ­announced they would challenge the ­dismissal of the driver who was found to have caused the accident.

This on the grounds that his employers had not ­followed the correct protocol when ­dismissing him.

I had to quickly remember that all workers have rights, even those who ­endanger other people’s lives.

It is often said that the strength of a constitutional democracy is not how it treats saints, but rather what it does with sinners. If the driver was not given a fair hearing, then he was unfairly dismissed.

It will leave a bitter taste in the mouths of the victims of his recklessness, but such is our social contract.

We cannot take short cuts based on who the actors are in a legal drama.

That is what those who were made uncomfortable by Cape Judge President John Hlophe’s unwillingness to roll over and die regarding the accusations made against him must learn.

Hlophe has announced his intention to appeal the two Supreme Court of Appeal (SCA) judgments that prompted the ­Judicial Service Commission to agree to reopen a complaint into his conduct.

In March, the SCA found that the ­commission had acted incorrectly in its handling of a complaint of misconduct brought against Hlophe by the 11 Constitutional Court judges who sat in 2008.

It means Hlophe will take the case to the Constitutional Court and thus ­precipitate a potential constitutional crisis ­because the complaint before the ­commission stems from accusations ­originally made by judges of that court.

Whose fault is it if a constitutional ­crisis is indeed precipitated by a person acting within his rights?

A delinquent train driver does not cede his rights because of his indiscretion.

Therefore, to want Hlophe to surrender his rights just because it inconveniences some is to be selective as to who enjoys the rights guaranteed by the Constitution.

The trouble in South Africa is that some of us believe that once they have decided that certain individuals are evil or represent a cause they do not support, these individuals cease to enjoy the rights the ­“virtuous” among us do.

It happened with the Jacob Zuma rape trial. Just because some either did not like the man, his politics or were fervently and correctly opposed to rape, they hoped he would simply lie down and ­accept his fate.

He did not and, as a consequence, his lawyer was called names for robustly defending his client.

It also happened when attorney Ismael Ayob dared to defend himself against our icon, Nelson Mandela, who accused Ayob of fleecing him.

Those who love the elder statesman treated Ayob as treacherous for wanting to ­defend his name.

This has nothing to do with what we may think of Hlophe, or his guilt or ­innocence.

It is about reminding us that we are all equal before the law and that all of us are entitled to use every legal ­avenue available, to have a fair hearing and to protect our good names.

Hlophe has done nothing illegal. If ­anything, he has shown confidence in the ­institution he is part of. All that his ­detractors represent is an adult scolding a child for “not playing nicely” with the other children.

There was always a chance that the Hlophe matter could be settled out of court, as it were.

But having chosen the legal route, the other parties to the dispute cannot want to have their cake and eat it.

They cannot complain if Hlophe takes the matter everywhere down the course they themselves have plotted.

It is game on. Unfortunately, it is the ­judiciary – and not a mortal and professionally mobile Hlophe – that will suffer long-term damage to its credibility.
 

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