I have tried to avoid writing about John Hlophe and have succeeded for the most part in doing that.
It’s not that I thought he was not news worthy. It was just that the actions of this Judge really was so beyond the pale, and the support he had harnessed from many professionals in the black legal fraternity so puzzling, disheartening, and many others were making a fuss about him – that I shrank from the task.
In any event, I naively thought that he would be brought to book long before he became the story in town.
The first I had heard of Judge Hlophe was the Oasis affair.
The next few blog posts will attempt to explain Judge Hlophe and why some people support him. But I won’t start at Oasis or the recent spat with Judges of the Constitutional Court. I want to start a bit earlier in an attempt to understand why we are where we are.
Hlophe had since 2000 been head of the Cape Division of the South African Supreme Court.
All seemed fine until one case exposed the huge racial tensions in the Cape Division. In a 2004 case between Health Minister Manto Tshabalala-Msimang and members of the pharmaceutical industry (Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others), Hlophe was accused of “unreasonably” delaying his judgment on leave to appeal.
The case itself were on the surface a laudable attempt to cut the price of imported drugs. The majority (Judge Hlophe and Judge Yekiso) of the court found in favour of the Government. Judge Janet Traverso, Hlophe’s deputy Judge president, found otherwise.
Applications for leave to appeal had been heard by the Cape High Court on September 20.
In an unprecedented step New Clicks had, in the light of Hlophe’s failure to either grant or refuse leave to appeal for a number of weeks, applied directly to the Supreme Court of Appeal for this relief. Notably ‘New Click’s’ council was Jeremy Gauntlett SC. A senior and former anti-apartheid advocate.
The government argued that the Supreme Court of Appeal had no jurisdiction. The SCA rejected this. The government then failed to argue the merits of their case.
“Already at the meeting on 17 November with me, the respondents’ [Government] counsel insisted emphatically on a separation of issues and stated that their clients would not instruct counsel to deal with the merits. During oral argument before us, the respondents’ lead counsel was specifically and repeatedly asked whether they required a postponement in order to prepare argument on the merits. The questions did not elicit a response. When asked whether the respondents could provide a date convenient to them for argument on the merits, the question failed to extract a reaction. When asked whether they needed an adjournment to consider a request for a postponement, yet again, counsel did not reply and simply proceeded to argue another point.”
It was an incredible show of disrespect. But the SCA hoped it meant something else.
“Cowed by the respondents’ refusal to be of any assistance we cannot be. Organs of State, which have a constitutional duty to, inter alia, assist courts to ensure their effectiveness, have always treated courts with respect and we assume that the refusal to argue is not indicative of a change of heart but rather of inappropriate legal advice based on overconfidence.”
Having been informed that the application had been made directly to the Supreme Court of Appeal, Hlophe, in an act of remarkable disrespect for the SCA, refused leave to appeal on December 3, days before the Supreme Court of Appeal were to pronounce on the matter.
His ruling was summarily overturned by the Supreme Court of Appeal in a judgment that was harshly critical of him. Said Judge Harms:
“First, parties are entitled to inquire about the progress of their cases and, if they do not receive an answer or if the answer is unsatisfactory, they are entitled to complain. The judicial cloak is not an impregnable shield providing immunity against criticism or reproach.”
Harms also noted that when studying Hlophe’s decision not to give leave to appeal for “any clues as to why it had to be delayed” he could not find any.
Harms found against the government in its entirety.
Hlophe when asked by The Star for a response is reported to have said with regard to the ruling that he “…couldn’t care less.”
This was of course highly contentious thing for a judge president to say about the Appeal Court Judgment. A complaint about his conduct was laid with the Judicial Service Commission. The first one as far as I am aware.
In the meantime the government appealed to the Constitutional Court. The Court glossed over the fact that Judge Hlophe had not delivered a judgment on leave to appeal for weeks except for saying:
“There was a delay in delivering judgment on the application for leave to appeal, and the Pharmacies decided to approach the SCA directly for leave to appeal.”
“In their judgment dealing with the application for leave to appealthe majority (Hlophe) accepted that the case raised issues of great constitutional importance “which needed to be finalised sooner rather than later” and would be likely to end up in the Constitutional Court. It is difficult to understand why, in such circumstances, they should have refused leave to appeal, and have taken so long to do so.
The majority concluded that there was no reasonable prospect of another court coming to a conclusion different to that arrived at by them. In that, as subsequent events have shown, they were clearly wrong. Having regard to the importance of the case, the difficult issues it raised, and the different views on outcome within the High Court itself, this was a case in which leave to appeal should clearly have been granted. I do not consider it necessary, however, to decide whether the delay in dealing with the application for leave to appeal in such circumstances amounted to a constructive refusal of leave to appeal”
The Constitutional Court gave a judgment that was nothing but a victory for ‘New Clicks’ although the Court tried it best to put a positive spin for the loosers benefit.
It found that the SCA was entitled to hear the request to appeal directly and said:
“The appeal by the Minister and the Pricing Committee [to the Con Court] is upheld in part and dismissed in part. The result is that the Pharmacies have succeeded in their challenge to the appropriateness of the dispensing fee, a central feature of the dispute. On the other hand the Minister and the Pricing Committee have succeeded in overturning the declaration of invalidity in relation to the regulations as a whole. They have therefore both been partially successful in this Court.”
The CC went on to order the government to pay the costs of the trail when they appeared before the SCA because they did not argue the merits of the case, adding:
“…courts are entitled to expect assistance and not obstruction from litigants in the discharge of their difficult duties. What happened in the present case not only failed to meet this requirement, but also evinced a deplorable lack of respect for the SCA, which is the highest court in this country in respect of all matters other than constitutional matters.”
Highly irregular stuff. But then something happened that emboldened Judge Hlophe.
On 8 January 2005, the ANC’s national executive council meeting in Umtata issued a wide ranging statement but that particularly alluded to alleged racist attitudes in the judiciary.
“We face the continuing and important challenge to work for the transformation of the judiciary. Much work has already been done to address the race and gender imbalances within this institution. Nevertheless, more progress has to be achieved in this regard.
However, we are also confronted by the similarly important challenge to transform the collective mindset of the judiciary to bring it into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination.
The reality can no longer be avoided that many within our judiciary do not see themselves as being part of these masses, accountable to them, and inspired by their hopes, dreams and value systems. If this persists for too long, it will inevitably result in popular antagonism towards the judiciary and our courts, with serious and negative consequences for our democratic system as a whole.
We have the task and the responsibility to mobilise all sections of the community to join in the People’s Contract to work for the realisation of their rights, including the rights contained in the Constitution to housing, health care, food, water and social security. We need to pay particular attention to the rights of those in society who remain vulnerable to neglect or abuse – children, the elderly, the sick and the disabled. We need to continue to work to building a caring state and a caring society.
It is at this time (February 2005) that Hlophe came up with a report about alleged white racism in the Cape Division of the Supreme Court. The secret report, which was sent straight to the minister of justice without any of the ‘accused’ having wind of it, created a sensation.
It accused anti-apartheid and New Click’s lawyer Jeremy Gauntlett, Judge Hlophe’s predecessor Judge Edwin King, and his deputy, Judge Jeanette Traverso, of racially-charged incidents. The report which was leaked to the press, of which only parts were ever published. The nub of the matter was that it accused Gauntlet, Traverso and King that they “undermined his authority” because he was black.
All of them denied these claims. Noteworthy was Traverso’s response linking at least part of this dispute to the previous contentious New Clicks case.
In the report, Hlophe reportedly says that Judge Traverso conceded to him that she spread a rumour that he and fellow black Cape Judge Yekiso did not read the record before compiling their original majority judgment.
Traverson begged to differ: According to her Hlophe claimed a month earlier that Traverso was responsible for another rumour. That is that he, and not Judge James Yekiso, had written a controversial judgment on the New Clicks case. The implication? Yekiso was incapable of writing it by himself.
However Traverso told Sapa that on at a subsequent weekly scheduled judges’ meeting, Hlophe apologised unconditionally.
“He retracted saying that I was responsible for spreading the rumour.”
The 43 page report also contained the following damaging claims from the Judge President of the Cape:
“Several allegations of racism, including a white judge telling his black colleagues that black people had corruption in their genes.
Other allegations were that there was a strong opposition to the appointment of black judges, and black judges who had made mistakes were ridiculed and some of their judgments were marked with red pen and circulated amongst members of the Bar.
Black judges were allegedly told to stop speaking isiZulu to each other in the chambers of a white judge, whites held whites-only lunches which blacks were not invited to, and a black lawyer was rejected by some white judges because they said he did not know Afrikaans.
The report also contained the alleged claim that Gauntlett had spread a rumour that Hlophe fired his secretary because she refused to lend him money.
Said Gauntlet:
“As recently as October, the judge president asked me to be an acting judge for a month in his division and, in that connection, was kind enough to refer to me in flattering terms in a letter to the minister of justice.”
In other words just before Gauntlett took New Click’s case to the SCA, Hlophe was recommending him to become a Judge in his division.
According to other published parts of Hlophe’s report, he has been subjected to racism from the legal fraternity for 10 years, from the time he was appointed a Cape high court judge in 1995. “Racism at its worst” is how Hlophe described the situation.
He said he had “inherited” the division from King in May 2000, which he claimed was torn apart due to “transformation issues“. At the time there were only two other black judges.
“There was also some tension [arising] from the fact that King had been allowed to reign (my italics) in the division [despite having reached his retirement age] with the support largely of the white bar and some white members of the bench to the detriment of transformation.”
He said only about 34 percent of a total 200 judges in his division were black. In other words the number of black judges had increased at breakneck pace, from 3 to over 60 in 5 years. Still he said that there there was no reason why transformation of the judiciary should be so “slow and painful“.
Echoing the ANC NWC statement he added:
“The judiciary is still by and large white and male-dominated in a country where the majority of the citizens are black. This is untenable. It makes those who fall prey to the legal system lose respect for the law, which is enforced by a small but dominant white minority.”
Lastly Hlophe also said some white lawyers often agreed to postpone matters when a black judge had been appointed.
Nothing came of either the JSC complaint against Judge Hlophe, while outgoing Judge President Chaskalson and incoming Judge President Langa’s investigation into the report and racism in the judiciary was a fudge (It recommended Judges go on diversity training) that was unlikely to please anybody.
Certainly not Judge Wilfred Thring. Thring had been implicated in the report and yet another incident that transpired soon after.
Hlophe had told an upset Advocate Norman Arendse that he gave a case, (the Mikro Primary School case) to fellow Cape Judge Thring. The case was one of over the language of instruction of a Cape School, and whether an Afrikaans school should be forced to give lessons in English.
Thring was a conservative Arendse insisted and should not get the case. But Hlophe told Arendse he should not worry because Thring would “fuck up” the case, after which it could be “set right” at appeal level. Arendse was correct, the Western Cape Government lost the case. Hlophe was wrong, the appeal was upheld.
In any event Arendse wrote to Justice Langa complaining about Hlophe’s behaviour. Hlophe flatly denied saying any such thing claiming that the then ANC premier of Cape Ibrahim Rasool was present when they had the discussion. Rasool kept mum.
Arendse himself, while not retracting his claims, tried to wriggle out of the matter.
“I have never confirmed it anywhere that that is what he said to me. I know it is ambiguous, but that is where I want to leave it.”
But Thring still upset. He was upset about what was said about him in Hlophe’s racism report and Arendse’s letter. Reports the Independent:
In his correspondence with Chief Justice Chaskalson and later Chief Justice Langa, he was promised the matter would be “dealt with” through “facilitation” and “reconciliation”.
But after eight months of promises, Judge Thring reached the end of his tether.
In a dramatic letter to Langa on Monday, he wrote “there are those who urge me to resort to litigation to clear my name of the unfounded accusations publicly brought against me”.
“The judge president wears the same mantle as was worn by Lord De Villiers, Watermeyer, JP and many other great men.
“I cannot reach him without tearing the mantle. Tempting though it is, that is not a step I can bring myself to take, at least not at this stage.
“However, I have no intention of going down in history as the judge who was publically accused… of overt racism and said and did nothing about it.
“The only practicable way that I can see of protecting myself against such a misapprehension is to ensure that all the relevant documentation… is securely preserved for posterity, so that others who may one day be interested in ascertaining the truth… may be able to do so.”
With that, Judge Thring placed his correspondence in the state archives, making it a matter of public record.
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1 On the essence of democracy // Dec 6, 2009 at 9:11 pm
[...] the Bloemfontein court of appeal found for a claimant and against the government, Judge John Hlophe found otherwise in the Cape High Court. Not only was it absurd, the appeal court is the ranking legal body, it was [...]
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