Wednesday, October 19, 2005

Is it acceptable for the Judge Hlophe affair to be settled amongst the involved parties?

For those of you who do not know, we have been amidst a serious set of allegations of racism in the judiciary in South Africa. Judge Hlophe, Judge President of the Western Cape, made allegations of racism last year, calling the pace of transformation too slow. He further alleged that black judges were belittled by colleagues and members of the bar. This resulted in much consternation and recrimination. Read more here. An offcial enquiry was launched and is due to deliver findings shortly.

Last week, new allegations regarding Judge Hlophe himself were raised. It was alleged that the Judge President called an attorney "a piece of white shit," apparently for, again allegedly, criticising a judgement handed down by a black acting-judge. More can be read here.

It was also alleged that Judge Hlophe told colleagues that he allocated a sensitive case regarding mother-tongue language rights for learners at the Mikro school in the Western Cape to a judge apparently regarded as conservative, because, in Judge Hlophe's alleged words, he [Judge Hlophe] knew that "Judge Wilfred Thring would fuck it up" and it could then be reallocated on appeal. On learning of these allogations, the advocate presenting the case chose not to appeal. More can be read here.

Today's stunning news is that the involved parties have chosen not to take the matter further, in the interests of the public. More can be read here.

Of course this entire affair is damaging for the transformation of the judiciary. And of course transformation is one of the most critical challenges facing South Africa. But not dealing with this matter is a slap in the face to all those affected by racism in South Africa. Without the guts to have open investigation and fair and due process, transformation stands little chance. Most galling of all, however, is that Judge Hlophe's claims made earlier this year resulted in a wide spread investigation and certainly fueled the fires of all those who regarded the judiciary in South Africa as a lagging remnant from our apartheid past. Every person who felt they were a victim of a racist system had reason to question the fairness of a trial.

An entirely different process has now been followed regarding possibly the most serious allegations raised against a South African judge. No transparency was ensured, no due process was followed. Instead a group of the judiciary met behind closed doors with the Minister of Justice and the whole matter disappeared. It provides grounds for anyone with a view that transformation is motivated by new racist agitators to point fingers at a system they might choose not to believe in.

I believe that the vast majority of our legal profession are hard working and underpaid. I believe that the vast majority of our judiciary are fair and learned men and woman.

But you can bet that if I'm ever involved in a legal case that I feel is not going my way, with Judge Hlophe presiding, I will motivate for his recusal. Such would be the implications of any doubt as to the integrity of our judciary. And that cannot be good for our democracy.


ChittyChittyBangBang! said...

I agree with you entirely.
The manner in which this case was resolved is basically nothing short of a "moerse klap" in the face of democracy and those who had been affected by racism.
This case goes far beyond the mere parties involved and if they believe that settling it amongst themselves has resolved the issue, then they are more naive than I had initially thought.
It is an insult to any person with a reasonable amount of intelligence and Hlope and the entire judiciary system in SA lost credibility in my eyes.

It is the question said...

Mmm. I see most of the rest of the legal fraternity feels the same way - here.

It is the question said...

And the latest on this, now that the claims against Judge Hlophe have been swept under the carpet:

'Judicial racism is resistance to change'

October 22 2005 at 04:49PM

Cape High Court Judge president John Hlophe said on Saturday that racism in the judiciary was peddled by those resisting transformation, SABC radio news reported.

"These problems experienced are designed to ensure that those who do not want change, hang on to what they have. This they do because they want to control and manipulate through the judiciary," the SABC quoted Hlope as saying.

He was speaking at a conference of the Black Lawyers Association in Vanderbijlpark.

They had "seen it many a time" when those resisting change tried to get their way through parliament, but failed, he said.

"Now they are trying the judiciary," the SABC reported.

This comes amid a furore over allegations that Hlophe made racist comments to a white lawyer, and that he belittled one of his white judges.

Last week a ceasefire was declared in the Hlophe race war when Chief Justice Pius Langa said that none of the protagonists wanted any further action to be taken. - Sapa