Judiciary set back

2008-07-07 00:00

Constitutional Court allegations that Judge John Hlophe, the Cape Judge President, tried to sway the judges of South Africa’s highest court to rule in African National Congress (ANC) president Jacob Zuma’s favour in pending corruption cases, risk a constitutional crisis.

South Africa’s constitutional democracy is underpinned by the concept of judicial review, where the government’s performance is subject to the courts. Once there is a whiff of political interference in the judiciary, especially the Constitutional Court, the foundations of South Africa’s political system are under threat. Chief Justice Pius Langa has rightly warned that “the independence of the Constitutional Court had been threatened [as well as the] integrity of the administration of justice in South Africa generally”.

Langa told the Judicial Service Commission that Hlophe at-tempted to lobby Judge Bess Nkabinde and Acting-Judge Chris Jafta to make pro-Zuma rulings. Langa said Hlophe alleged that if the Constitutional Court pronounces in favour of Zuma, there “would be no case against Zuma”. Since, the National Prosecuting Authority (NPA) has insisted that the state’s “decision to institute criminal proceedings against Zuma was not dependent on the outcomes of the pending adjudication by the Constitutional Court”.

The NPA also said that its case against Zuma does not rest on the outcome of Zuma’s tussle with the state in the Mauritius Supreme Court over the admissibility of evidence from documents seized from Zuma.

Hlophe has defended the conversations in question that he had with Jafta and Nkabinde in March and April as merely “casual”. Hlophe has now accused Langa and his deputy Dikgang Moseneke of lying and exerting “improper influence” on judges Jafta and Nkabinde. Hlophe alleged that Moseneke and Langa are campaigning to remove him because he had accused white colleagues of racism.

This whole sordid saga should convince those who want Zuma to become president of South Africa that he — and the behaviour of many of his closest associates — is a threat to the very constitutional democracy of our country. The worrying thing is it appears that both Hlophe and Zuma are unconcerned that their political interference to influence the judiciary risks a constitutional crisis.

It seems that the only things that matter are their personal interests: Zuma’s overriding ambition to become South African president, no matter the consequences for the country. Hlophe, on the other hand, appears to be equally determined to become judge president, ditto whether en route he dents the credibility of the very judiciary whose independence he should uphold.

Zuma and his more zealous supporters repeatedly attack the judiciary and individual judges publicly in their strategy to garner public support for their claim that his (Zuma’s) legal problems are part of an elaborate political plot. By doing this, Zuma’s supporters apparently reckon that they would be able to intimidate the judges overseeing his case to soften or, if they don’t, to create the public impression that the judges are unable to give him a fair trial because of alleged bias. This is a dangerous game being played by the Zuma camp.

Hlophe’s past ethical behaviour has fallen far below that expected from judges. He secretly received consultancy fees from the Oasis Asset Management Group and then gave the company permission to sue Judge Siraj Desai for defamation. Because he has claimed that the latter allegations against him were fuelled by white racism, black colleagues have in the past remained silent.

This is the ongoing dilemma in our racially charged society: the reality is that racism is still prevalent on the bench, like it is in other institutions. Some black law professionals, even if they know that Hlophe’s ethical behaviour was wrong, are reluctant to criticise him because they also personally experience racism in the workplace. They fear giving legitimacy to the more hardline white critics of transformation.

Yet, South Africa won’t be able to move forward unless it is able to separate individual wrong behaviour, in the case of Hlophe, from his fight with real or perceived racists and opponents of transformation. In the case of Hlophe, black legal professionals must tackle him for bringing the judiciary into disrepute, even if their criticism is the same as that of white colleagues who are perceived to oppose transformation in the judiciary, and who now seemingly use Hlophe’s ethical transgressions to hit a blow against the transformation of the judiciary.

Equally, playing the race card to score brownie points to advance one’s personal ambition or to deflect ethical shortcomings, rather than it being a serious concern over transformation, undermines the very foundations of transformation.

Because Hlophe abused the very legitimate need for transformation of the judiciary for his personal ends, it means that the case for transformation, already emotionally, racially and politically charged in South Africa, has been set back.

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