Warning lights

2009-08-07 00:00

THIS is an appeal to members of the judiciary and the legal profession, those who have any res­pect for the rule of law and for the preservation of our constitutional democracy, to resign in protest should Judge John Hlophe accede to the position of Constitutional Court judge or chief justice. Drasti­c action is needed if we are serious about safeguarding the independe­nce of the judiciary and preventing it from sinking into the morass of incompetence prevalent in many of our statutory bodie­s.

That Hlophe has even made it onto the short list for vacancies in the Constitutional Court, despite his long track record of serious judic­ial infringements, is a warning signal that should propel us int­o action. His appointment will destroy the dwindling confidence the public has in the judiciary. We have seen a steady assault on the independence of statutory bodies, and should ensure that the same fate does not befall the judiciary.

To entrench the values of independence, the Convention for a Democratic South Africa removed the power of appointment from the executive and conferred it upo­n the Judicial Service Commission (JSC). The JSC has failed the test, however, and failing to act decisively when Hlophe first erred has thrown the judiciary into crisis­.

Its lack of transparency in conducting its investigations into the dispute between Hlophe and the Constitutional Court judges is so contrary to the tenets of an open democratic society that we should be alarmed. It failed to discipline him when he hurled racial insults against an attorney. His protracted refusal to grant leave of appeal in the well-known pharmaceutical case — despite the disagreement of his deputy judge president with the majority view — was rightly criticised by the Court of Appeal.

Further, not only was he on the payroll of a very controversial asse­t management company, Oasi­s (he lied about it), he alle­gedly allowed a major firm of attor­neys to pay his son’s uni­versity fees; and he crossed the conflict of interest barrier when he failed to recuse himself in the Judge Desai-Oasis defamation suit. It was his alleged attempt to influence judges in the Zuma corruption case that was the straw that broke the camel’s back — and caused the current crisis of lack of confidence in the judiciary.

Hlophe should have been impeached a long time ago. He is unfi­t for judicial office and has been let off the hook too often. As a black person, he knows he can exploit the culture of silence inspi­red by a deadly cocktail of deep racial tensions shrouded in racial guilt, and ambition for the perks of high office so prevalent in the legal community today.

The Justice for Hlophe Alliance — inspired by racial solidarity rather than concern for the profession — argues that, given his humble origins, Hlophe will be a “transformational leader”. It unashamedly promotes racial solidarity above judicial competence, going on about racial transformation regardless of the gains made in the higher courts since 1994. Of the 201 current sitting judges, 42 are women and 76 are white males. The remaining 112 judges are either coloured, Indian or black males. In 1994, there were only three blacks out of 166 judges of the Supreme Court.

The alliance shows a fundamental ignorance of one of the most important aspects of the Constitution — a curb on the abuse of power by the majority. Power is seductive and the bun fight in the judiciary shows the exten­t to which ambition will go, even if it means destroying the institutio­n.

Judicial excellence is a requirement to prevent the abuse of powe­r, and a prerequisite for the efficient adjudication of often complex commercial and industrial disputes. Once the business community loses confidence in our legal system, and particularly its enforcement of sound commercial practice, confidence will evaporate and foreign exchange flight will become inevitable.

The obsession with racial bean-counting has already reduced the judiciary to levels below par — given the concerns of judges Carol­e Lewis and Azhar Cachalia about substandard judgments bein­g given by judges unfit for their positions. Should he be appoin­ted to the Constitutional Court or (God forbid) as chief justic­e, Hlophe will become the embodiment of all that is wrong in our judiciary.

• Rhoda Kadalie is a human rights activist.

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