The story of John Hlophe

2009-08-28 00:00

AS it happens, John Hlophe and I spent our childhoods only a few kilometres apart. When I was a boy living on a sugar farm on the north coast in the early seventies, so he was living on a neighbouring farm. I was unaware of this at the time but in 1995 I came across an article about him in the South African Sugar Journal. He had just become the first black judge at the Western Cape High Court and, at 36, was one of the youngest judges ever appointed in the country. Captivated by the remarkable circumstances of his rise in the judiciary, and intrigued by how nearby to each other we had once lived, albeit in different circumstances, I wrote a column about him in this newspaper. But that was 14 years ago, so I will draw on my earlier article and then add to it from what has happened since.

Mandlakayise John Hlophe and his family lived on a farm belonging to Ian Smeaton at Kearsney, inland from Stanger/KwaDukuza. His father was a nightwatchman and his mother a gardener. Over weekends and during school holidays, Hlophe weeded the farmer’s garden and looked after his chickens to supplement the family’s income. It was while doing these duties that he noticed the visits of the farmer’s lawyer nephew. The young boy admired the visitor’s style, clothes and motorcar and decided that he too would like to become a lawyer.

Fortunately for him, Smeaton recognised Hlophe’s exceptional intelligence and undertook to sponsor his education. Given just enough money to cover his studies and living expenses, Hlophe progressed rapidly through Ohlange High School near Durban before going on to Fort Hare University for his B. Juris and the University of Natal for his Ll.B.

In the early eighties, white universities were essentially closed to blacks but Smeaton spoke to his friend Exton Burchell, then head of the law faculty in Pietermaritzburg. Professor Burchell agreed to interview Hlophe and was so impressed that he accepted him immediately. The state needed very good reason before it would make an exception, but fortunately the authorities accepted Burchell’s recommendation without demanding details.

From the University of Natal, Pietermaritzburg (UNP), Hlophe won a scholarship to Cambridge for his masters degree, and then another to complete his doctorate there. A permanent post at Cambridge was a probability but his roots were in South Africa and he decided to come home. Some years previously he had married, and he wanted to get back to this country to be with his wife and their child.

After stints as a lecturer at UNP and as professor of law at the University of Transkei, he was — despite never having practised as a lawyer — appointed as a judge in the Cape provincial division at the beginning of 1995.

As related in the Sugar Journal article, Hlophe’s big regret was that he couldn’t share his success with his benefactor, who died in 1986. However, he did manage to thank Smeaton shortly before his death. “I was on a visit to Madundube where I grew up. He heard that I was around and sent for me. Our last meeting was very touching. He made and served me coffee and we sat down at table like friends meeting after a long time.”

Hlophe remembered Smeaton as someone who was a gentleman and very humble. “He spoke to me like a father speaking to his son and said how proud he was of my achievements and that I had not let him down. We spoke about my studies and my overseas experiences. He spoke about the farm and the fact that he was not in the best of health. At the end of our talk he asked his chauffeur to take me back.”

Hlophe added: “I would have loved to have been photographed with him as the person who put me where I am today.”

Perhaps my knowledge of aspects of Hlophe’s background and the person who helped him coloured my reaction to his story, but to me in 1995 it was a parable containing many exemplary lessons that we could all do well to learn. Yet much has happened in the intervening years, including Hlophe’s elevation in 2000 to Judge President of the Cape provincial division.

Since then, however, he seems to have been continually mired in controversies. One involved a company called Oasis from which he was receiving a discreet monthly payment of R10 000 (in total, apparently, nearly R500 000) and to which, without having declared a conflict of interests, he granted permission to sue a fellow Cape judge. Another was the alleged payment of his son’s education from a bursary scheme “to help disadvantaged students” set up by a Cape Town firm of attorneys, one of whose former partners Hlophe periodically appointed as an acting judge. Another involved his delay in a decision in a pharmaceutical case in which his ruling was summarily overturned by the Appeal Court, to which he responded that “he couldn’t care less”.

Then there have been the raised eyebrows about whether his lavish lifestyle is appropriate for someone in his position: the Porsche, the wine farm and the game hunting. And the more recent controversy about his alleged attempt to influence two Constitutional Court judges to favour Jacob Zuma when the validity of search warrants relating to his corruption case was before the court.

Added to these have been the personal attacks. He was accused of calling a Cape Town attorney “a piece of white s**t”, and is alleged to have said that he had allocated a particular case to a certain senior Cape judge “because I knew he would f**k up the trial and then it could be set right on appeal”. In 2004, unbidden, he submitted a report claiming racism at the Cape Court, among others labelling as racist such respected figures as Arthur Chaskalson and George Bizos. Even Chief Justice Pius Langa has not escaped censure, as Hlophe has reportedly refused to shake hands with him, saying ironically that he didn’t want to shake the hand of a white man.

Surely this isn’t the kind of behaviour expected of a judge? Even if there is residual racism in the legal profession, Hlophe’s case has been poorly served by his legal advisers and supporters who seem determined to fan the flames rather than to dowse them. One of these is former UCT staffer Paul Ngobeni, who has been found guilty of misconduct and barred from practising in three American states. Another is lawyer Barnabus Xulu who dismissed former Constitutional Court judge Johann Kriegler’s assessment of the Hlophe saga as a “sad case of a very promising, bright, young man who was promoted too quickly, given too much power, and it went to his head”, as the ramblings of “an old man”.

All this is unseemly and tragic, and typical of South Africa whenever there are differences of opinion, especially if the contestants are facing off across a racial divide. But even those who are blinded by stereotypes should remember the goodness in this story: about how there was once a bright young man of limited prospects on a sugar farm and a big-hearted farmer who saw his potential and invested in his future.

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