South Africa on a Slippery Hlophe
John 'Slippery' Hlophe
Today will mark a dark day in South Africa’s future history: it is the day the judiciary was emasculated. Judge John Hlophe has been cleared by the Judicial Services Council of gross misconduct in attempting to influence two Constitutional Court judges. In doing so, the majority of the disciplinary committee of the JSC twisted and turned in a grotesque dance to find a justification for clearing this fatally flawed man.
I expected it. I even predicted it. But there was some part of me that hoped that sanity would prevail and that sacrificing the independence of the judiciary for a single man could simply not happen. And not just any man: a racist liar who is completely unsuited to be a judge. But then again, the same people who championed Hlophe were also prepared to sacrifice the independence of the prosecuting authority – and much more – for a single man, Jacob Zuma.
The only question is: what is the deal? Hlophe clearly knew that he would get a far more friendly hearing from a reconstituted JSC under Zuma, so he used every trick in the book, including feigning illness to delay his hearing until that day arrived. Now he’s free to be selected to serve on the Constitutional Court. Could this really be? One part of me is hoping…
The JSC itself also comes out of this saga with its credibility in tatters. It drew a distinction where none existed to avoid a full hearing that could have exposed the lies of a sitting judge and could have gotten rid of one or more bad apples on the bench. The fact that the JSC does not seem concerned about the fact that their decision condones scurrilous lies, suggest it has no ethical compass of its own.
Is Zuma an evil genius or a genial idiot?
The fading arc of dye at the end of my left thumb nail is a reminder that it’s about 100 days ago that Zuma became president of South Africa, the customary evaluation time. Like the faint mark, most South Africans have probably a less black-and-white view of the man now than they did 100 days ago. Yet I’m not convinced that we fully understand his strange presidency.
Let’s roll back and consider how the Big Man got into power in the first place. Certainly, he didn’t campaign on his clean record of public service and exceptional leadership qualities. Was it perhaps identification with an uneducated, polygamous and deeply conservative tribalist that got him elected? No, I think rather it was the sleazy outcome of a deal between a highly compromised man facing a life of jail and ignominy, and a power-hungry left-wing rabble of communists and trade-unionists. It is difficult to find any other motive for this other than the creation of a puppet for the real rulers, who are perhaps unpalatable to the average voter.
In the process, this rabble threatened and pressurised the judiciary, viciously threatened their enemies real or imaginary and engineered the collapse of prosecutorial independence. Zuma was willing to see the Constitution – the crowning achievement of decades of bitter struggle – threatened and weakened just so that he, as an individual, could escape the very serious charges against him. The way was then opened for him to be pushed into office.
We are seeing the ramifications on this assault on the Constitution. The judiciary is feeling extremely vulnerable and is involved in a public squabble. The prosecuting authorities have lost all credence. Whether these will have long-term ramifications is yet to be seen. Needless to say, the supremacy of the Constitution is in peril.
So the deal is: the left-wing cabal guarantee that Zuma is protected and is given the leeway to use State resources to form a ring of steel around him – an immunity zone. In return, he will be a compliant figurehead, a stooge for the real rulers who have been slavering away for power but could never achieve it in their own right.
Let’s have a look at the evidence for this deal.
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The Zanufication of South Africa
Story 1: War veterans illegally occupy private farmland. The ruling political party to which they belong facilitates this by providing shelter to the invaders. When the owner and the local opposition-party mayor lawfully demand that the invaders leave or be forcefully removed, the police threaten to arrest the owner and mayor, not the criminal invaders.
Sound familiar?
Story 2:The supreme law of the land is the Constitution which guarantees a raft of basic human rights to its populace. The highest court in the land zealously guards it. The Ruling Party does not like the rulings the court hands down and so systematically goes about stripping the Court of independent jurists and replacing them with obsequious party hacks. Eventually the Ruling Party is allowed to do as it pleases, stripping people of their rights and brutalising the opposition supporters. The judges smile on in benign approval.
Sound familiar?
Well, we all know the story of Zimbabwe and its brutal ruling party, Zanu-PF. They have reduced their country to ruin, their citizens to penury and fear. In effect Zanu-PF runs a fascist dictatorship, a kleptocracy of vicious thugs.
South Africa is no Zimbabwe – that’s obvious. I for one have been dismissive of hysterical claims that South Africa is turning into another Zimbabwe. But I am starting to get a bit uneasy of late. Two reports appearing today have made me become quite apprehensive.
The first report came from Timothy Nast, the DA mayor of Midvaal Municipality on Radio 702 this morning. A large group of thugs were burning tyres, blocking traffic and stoning passing cars on a busy highway this morning. They had invaded a farm yesterday and, Nast alleges, habitable containers were provided by the ANC-controlled area authority. South Africa has appallingly anti-private property laws regarding squatters but at least they do allow invaders to be removed from the property within 48 hours of arriving. The owner quite rightly and lawfully demanded that the invaders move off the land and that the police should enforce this. Nast alleges that the police refused to do this and instead threatened to arrest him.
The second report was carried by Business Day. Judge President of the Western Cape, John Hlophe’s Judicial Service Commission (JSC) hearing into the dispute between him and the judges of the Constitutional Court (CC) have been cancelled. Let’s put this in perspective. Hlophe was accused by the CC judges of attempting to improperly influence judgements relating to Jacob Zuma. Hlophe ducked and dived, using every trick in the book his rabid supporters led by the fugitive Paul Ngobeni had honed to get Zuma off the hook. His waiting game was a transparent attempt to get a hearing by a far friendlier JSC after Zuma’s election.
And he got it. Zuma replaced his appointments with a bunch of pro-executive and definitely pro-Zuma and Hlophe lawyers. Their first action was to hold Hlophe’s hearing in secret and then to simply cancel them. It looks very much as if Hlophe, who any reasonable person would find to be the last person who should hold such a position, is headed for the post of Chief Justice. Even if that is not the case, these actions show executive intent to mould the judiciary into the ANC’s lap-dog. “Transformation” of the judiciary clearly means to transform independence into subservience.
So yes, Story 1 happened in South Africa, although of course it has happened in Zimbabwe countless times.
Story 2 is the story of the emasculation of Zimbabwe judiciary. Without a judiciary willing to uphold the constitution, ordinary Zimbabweans were left naked in their defencelessness from a ruthless and arrogant ruling party, Zanu-PF – lead by that madman Robert Mugabe. These actions taken in the JSC’s Hlophe hearings are an extremely worrying portent of where South Africa could be headed.
But is there any evidence that the ANC seeks to follow Zanu’s example? Well not directly and not really on the same path. Whereas Zanu-PF is a very aggressive fascist socialist movement, the ANC seems to be moving towards a highly centralised Stalinist statist model. Here are the pointers:
- Under Thabo Mbeki, the ANC government sought to centralise control of all facets of government and “deployed” ANC cadres to key positions – not on the basis of ability but on that of blind loyalty to the leader
- The ANC’s 2007 Polokwane conference resolved to centralise political power with the Party – not with the elected government
- The ANC arrogantly chose an entirely inappropriate candidate, Jacob Zuma, for president and then embarked on an aggressive campaign of threats against the judiciary to make sure the legal impediments to his ascendency were removed
- After years of doggedly pursuing Zuma on fraud and corruption charges, the National Prosecuting Authority succumbed to enormous political pressure and abruptly dropped all charges on flimsy and discredited grounds
- The majority of Zuma’s cabinet are or were loyal communists (as was he), including key appointments such as the Stalinist finance minister Pravin Gordhan and a senior cabinet post for Blade Nzimande, general secretary of the SA Communist Party
- A new, enlarged cabinet structure which has a heavy emphasis on central planning
- Policy, direction and disciple is not set by the president or his government but by the Party under the leadership of SACP chairman and ANC secretary-general, Gwede Mantashe
- Justice minister Jeff Radebe interferes with the working of the “independent” JSC
I agree that this is not conclusive evidence of a South African version of Zanufication. But I would argue that with so many pointers toward total Party control, there is a great deal to be concerned about.
Hlophe’s dogs are barking mad
The pattern is a growingly familiar one in South Africa: a powerful, populist, ethically challenged black person has some sort of run-in with the authorities. Then a vocal, mysteriously funded, fiercely loyal and rabidly combative band of acolytes forms like a crust around its flawed hero. The more corrupt, morally bankrupt and/or criminal the individual, the greater the rabid band’s devotion and the greater its portrayal of the subject as a victim of the “system”. Jacob Zuma’s band managed to unseat an elected president, compromise the judicial system and engineer his path to the presidency.
Another such individual is Judge John Hlophe. He meets all the criteria: he is powerful (judge president of the Western Cape), populist (the judiciary is riddled with unrepentant racists), ethically challenged (ruled on a case in which a plaintiff was his own dubiously sanctioned client) and is involved in a career-threatening run-in with the authorities (impeachment hearing for allegedly trying to influence Constitutional Court judges in favour of Zuma).
So of course John “Slippery” Hlophe has his own merry band of over-enthusiastic devotees, The Justice for (Judge President) Hlophe Alliance (JHA). Like their Zuma-adoring counterparts, they build up a straw man argument – in this case that Hlophe is being attacked for his “transformation” stance – and then viciously attack any detractor by spewing ad hominem racist vitriol. Not the reasoned argument for them – no, everything is about race, even it’s a black person who is the object of their venom. It appears there is a grand conspiracy between white, “anti-transformation” agents and their uncle Tom, self-hating black collaborators. Black people like Chief Justice Pius Langa, who unlike Hlophe, fought in the struggle against apartheid.
The JHA will not hesitate to stoop into the gutter to vilify its opposition. Nothing is sacred in the holy fight. Tony Leon’s quite reasonable article describing how Hlophe and his outriders are using a fifth-column strategy to vandalize the Constitution, drew the opprobrium of Hlophe’s dogs:
The Justice for Hlophe Alliance notes with extreme sadness that Tony Leon, a Jewish South Africa citizen, has blatantly imported and invoked language and tactics from Israeli politics in an effort to slander the Judge President. Just two years ago, an Israeli member of parliament, Effi Eitam’s declared that Israel should expel West Bank Palestinians and bar Israeli Arabs from political life, since the latter are “a fifth column, a league of traitors.”
….
The Justice for Hlophe Alliance warns Leon and others against starting or introducing into our society a racist discourse that could replicate the Arab-Israeli eternal strife.
WTF? This is a straight anti-Semitic smear. Mind you, it’s very creative. Take a well known English language phrase, find a quote from an Israeli politician using it, and then somehow use that to accuse Tony Leon of dragging (Jewish) Israeli politics into South Africa. So creative they must be barking mad.
Paul Ngobeni
Their latest raving draws suspicion to the haste with which Johnny’s case is being pursued by the Judicial Services Commission. This is a tactic lifted directly from the Zuma campaign. Delay, litigate, delay, feign sickness, delay, litigate, and so on and so on. And then say it’s all being done with undue haste.
Chief choir master of these crazies is one Paul Ngobeni, until recently a deputy registrar at the University of Cape Town, and wanted felon. He is the chief conspiracy theorist and reality denialist – at least when it comes to his beloved master, JH. It’s too tedious to try and find any substance in Ngobeni’s utterances – but in summary it’s all a racist conspiracy against a hero victim. One of his targets, public law professor Hugh Corder at the University of Cape Town has hit back, including this gem I had not heard before:
Significantly, Ngobeni writes nothing in defence of Hlophe’s conduct on the Bench in the two instances for which I criticised him: his unacceptably dilatory and legally controversial refusal to grant leave to appeal in the New Clicks case in late 2004, and his extraordinary, some may even say unconstitutional, use of the contempt power in November 2007 when he detained an advocate in court for three hours after the conclusion of formal proceedings, because the latter had arrived an hour late for a hearing.
So what is to be gained by supporting such an incredibly flawed character? It’s not hard to find the answer: just look at where Zuma’s mad dogs are now. They’ve been rewarded very well. They’re all sitting in very cushy posts in government and hold enormous sway over government policy. Zuma owes them big, and they all know it.
Similarly, I’m sure Hlophe’s supporters don’t think he’s just a tremendous chap worth supporting. No, they have a clear aim in mind, clearly stated, to get the Slippery One installed has Chief Justice. And then of course they will expect – and get – the legal goodies they believe they so richly deserve.
If that happens, and there’s good precedent to show that it could, then South Africa is in deep trouble. The Constitution is all that stands between us and Zimbabwe. And it’s only as good as those responsible for upholding it.
Judicial independence under threat
Zacob Zuma, in his successful attempt to become South African president, employed a dogged, block-by-block campaign to pursue every possible legal opening, to spoil and delay, and to unleash his allies on the judiciary. Whenever an unfavourable ruling was handed down his dogs vilified the judge involved and threatened the judiciary as a whole. When he happened to receive a favourable ruling, the judge was lauded as a comrade judge, a progressive thinker in a sea of judicial conspiracy. Finally, the prosecutors were brought into line using an illegally obtained spy tape and a hopelessly flawed and plagiarised legal argument.
Zuma’s actions made it clear he didn’t give a jot about the constitution and its institutions. However, during the election campaign the ANC repeatedly said they respected the constitution and that they had no intention whatsoever of changing it. They had held a two-thirds majority before and never used it to change the constitution.
Well they lied. As Pierre de Vos points out, they want to change the constitution to place the state above the law.
This amendment thus attempts to place the state above the law and the Constitution. It demonstrates a shocking lack of respect for a judgment of the Constitutional Court and for the independent and impartial judiciary and sends a signal that the ANC government will amend the Constitution if it does not like a judgment of the highest court.
So what next? Will the ANC-led government now attempt to remove the provisions in the Constitution that subject the President to the Rule of Law? Hey, who needs to follow the law or the Constitution if you were elected by 2400 delegates at Polokwane? What about the right not to be arbitrary evicted from your home without an order of court? After all, those pesky poor people continue to challenge arbitrary evictions by our heartless and anti-poor government.
This is an extremely worrying and dangerous development. One cannot have a supreme Constitution if the governing party changes the Constitution willy-nilly to overturn decisions of our highest court.
After all the anti-constitutional activity by Zuma and his acolytes/puppet masters, should one have expected anything less? For those who haven’t got it yet: the ANC government cannot be trusted. And it will act with the arrogant knowledge that its voters will support it no matter no matter how much it tramples on their hard-won rights.
The independence of the judiciary appears to be Zuma’s most pressing target. The ongoing barrage of words against this constitutionally guaranteed independence has given way to a new, insidious battle. The recent court cases involving John Hlophe have unfortunately shown that judgements in the High Court have tended to split along racial lines. The judgement given in Hlophe’s first case in the then Transvaal High Court was a judicial mess and the honourable justices seemed to be bending over backwards to find in favour of Hlophe. It was correctly slapped down by the the Appeal Court. The judges in this case all happened to be black. In his latest action against the Judicial Service Commission (JSC), the majority opinion once again appeared to be highly accommodating to Hlophe, going so far as giving him more than he even asked for. Once again the majority happened to be comprised of black judges.
This has got to be heartening to Zuma. To him – and to many others – it must look like black judges will be more friendly to fellow black judges and politicians. So, surprise surprise, the new Justice Minister and Zuma acolyte Jeff Radebe has persuaded the “independent” JSC to delay all interviews for judicial appointments. Why?
“The minister of justice requested a postponement to consider the
following: the enhancement of the independence of the judiciary (and)
the vital question of the transformation of the judiciary in terms of
the constitution with regard to race and gender representivity in order
to facilitate meaningful input in the appointment process.”
This sounds just so Orwellian. The constitution already directs the JSC to consider issues of transformation when it make appointments. The overriding impression left from this action is that Zuma, through his lapdog Radebe, wants to pack the Court with more friendly faces – probably black faces.
The attack against the independence of the judiciary is accelerating. Zuma’s young attack dogs are no longer spewing insults at member of the bench. It’s got a lot more serious.
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