By: Siphokuhle Mathe
The Judicial Service Commission has offered its recommendation that embattled Judge President Hlophe be suspended after being found guilty of gross misconduct.
In 2008, Hlophe visited two justices of the Constitutional Court, Chris Jafta and Bess Nkabinde and expressed concern over the jurisprudence of a legal technicality that would need to be applied in a case involving Former President Jacob Zuma.
In the evidence adduced at the tribunal as well as an interview, he is cited as having made the expression of ‘sesithembele kinina’ which an expert witness took liberty to provide a sociolinguistic analysis of.
In this analysis, the broad meaning is “we pin our hopes on you” was offered, having considered the pragmatics of the phrase in various literature and other ethnographic material.
Much legal-speak has addressed the issue of this case but a socio-legal interdisciplinary approach is required in how we reflect on this 14-year matter.
Dubbed the ‘father of public administration’, Woodrow Wilson wrote an essay entitled ‘The Study of Public Administration’ (1887) in which he fleshed out the theory that politics and public administration follow different schema and logics.
The historical benefit of the theory is similar to that of German sociologist and philosopher Max Weber’s concept of the bureaucracy which he introduces in 1948.
The idea that administration is organised, hierarchical, constituted of apolitical persons whose professionalism takes on principles of impartiality, well-defined scopes of control in order to deliver itemised ‘public goods’ such basic services, education, welfare facilities is reiterated in this 1948 seminal paper.
Neither Wilson nor Weber wrote with South Africa in mind but their thinking has enjoyed colonial tourism and settled in our post-colonial public policy imagination. Their work has effectively added to the naïveté of Charles Montesquieu who conceived of the trias politica or separation of powers doctrine.
In South Africa, the separation of powers doctrine ensures that arms of the state act independently and embrace notions of transparency and accountability.
But the concept itself ignores the fact that many of our institutions are interactive in nature, both actively and passively. For example, the Auditor General interacts with the institutions it audits and qualifies and unqualifies audits with the view to strengthen governance where accountancy and financial management are concerned.
Similarly, the Public Protector despite being there to protect the public, protects democracy and governance by seeking to understand the circumstances under which maladministration takes place and may provide advice or recommendations to institutions who need perspective on their problems.
One of the sins of political philosophy from the Enlightenment period in Europe is that it delivered and forced notions of objectivity with no appreciation of the symbiotic nature of things.
Furthermore, the insistence on ideas like ‘objectivity’ and ‘independence’ does the work of covering up for sub-cultures that pervade all societies and professions. Lawyers and judges constantly interact to discuss and debate cases in both social and professional settings.
Lawyers see judges in their chambers to clarify procedural and other matters. This does not mean that practitioners and judicial officers are unduly influenced in how they discharge their duties.
Objectivity and independence do not therefore mean or produce the ‘individual’ responsibility that liberalism prefers. It simply means that the buck and responsibility will still lie with the person with whom there is vested bureaucratic power.
What was not considered by the JSC tribunal, both in its hearing and the ultimate report is difference between a judge reading their Sunday papers and later being seized by matters referenced therein and the fact of Judge President Hlophe expressing an opinion on the jurisprudential direction of a matter. In similar fashion, a judge’s reading of other reported or decided cases in legal reports, journals or libraries does not constitute ‘undue influence’.
This is because one’s impartiality, power of discernment and integrity cannot be compromised or lower in standard simply through interacting with new or any knowledge.
The rules stipulated in the Legal Practice Act and the Code of Conduct therein were not conjured with the consideration of the sub-culture of scholastic collegiality. They were formed with assumptions that keep the judiciary within a hierarchical disciplinary silo and away from the post-apartheid developmental framework by which other institutions of the state are enjoined.
In a developmental state, the state undertakes its duty to ensure capable institutions are strengthened to feed the socio-economic developmental aims of the country. Strict ‘hierarchies’ held between the court levels may be of obstruction to such development and contrary to basic democratic values.
If the South African Law Reform Commission took to its mandate of researching and reviewing all branches of law with the sole aim of transforming the law, illuminating areas for legislative improvement, modernisation and development, the elements of sub-cultures within the legal space would have been adequately addressed and left under constant review.
Research coming out of the commission would work to guide policymakers in parliament on how best to deal with over-politicisation of the judiciary, increasing suspicions of judicial capture as well as the ways in which the law and rules can reflect the notions of justice that African peoples hold as opposed to superimposing European positivist legal approaches.
Impeaching a judge whose division is the most transformed in post-apartheid in terms of racial and gender composition does not bode well for a region, the Western Cape in particular, whose spheres of social life continue to be white and male dominated.
What is understood in his case as ‘gross misconduct’ serves the forces that are triangulating in order to neutralise him and the power he is wielding against the status quo in Western Cape.
South Africa’s crisis of imagination oftentimes leads to reactionary solutions that are unsuited to the challenges of the day. Let’s consider comparatively: doctors in South Africa also have an oath to protect and uphold the safety of their patients through their care.
In spite of this, gynaecologists in this country prefer to deliver babies via C-section as the medical costs for this is higher and yields greater earnings for practitioners. This goes unquestioned and unchallenged and perhaps accounts for one of the most common forms of economic-related obstetric violence.
Since the HPCSA governs and regulates the health sciences and its practitioners, the overriding of this sub-culture seems impossible because there a gap in the knowledge shared between doctors and patients and there would be no incentive for this body to work against its elite cohorts (i.e. specialists).
It should therefore be clear that concepts like the ‘Rule of Law’ and the ‘Hippocratic oath’ are always applied inconsistently and do not truly reflect professional sub-cultures.
Similarly, the Zondo Reports were not written in full by himself as the chair. Meetings were held and work was delegated to others who authored parts of the released volumes. The question on Zondo’s independence and fitness to discharge duties has not been raised in public because the work of that commission takes a step in consolidating the misdemeanours of the Former President’s administration.
It makes it difficult, therefore, to understand why Justice Hlophe’s simple ‘sesithembele kinina’ discussion is treated with such contempt since he, too, had a scholarly interest in a jurisprudential question that the courts had struggle to find a singular voice on.
Suspending Judge President Hlophe will not be a deterrent nor deliver justice. In fact, returning to the Jafta and Nkabinde encounters and the meaning of ‘sesithembele kinina’ to raise his jurisprudential concern would make the suspension and ultimate impeachment disproportional to the ‘crime’.
Equally, it would be a case of placing the target on Hlophe’s back rather than justice. When Jafta and Nkabinde applied to rescind their complaints following the realisation that they had acted in haste and had given credence to pressure applied by colleagues, no one at the time of the lodging a rescission regarded the application as reflecting fear and favour on their part.
A judicial Truth and Reconciliation Commission should be set up if the state is to get to the ultimate bottom and extent of state capture.
At this TRC, judicial officers who have been ethically challenged in any way, either by being offered or accepting bribes; or deciding favourably in cases involving entities with whom they have a remote interest (i.e. a shareholding); or who received information from intelligence agencies about security threats pertaining to cases they are seized by; or those who, unbeknownst to themselves, may have decided in favour of political strategies of formations with whom they had allegiance or entanglement with in university, would all have the chance to ventilate these ethical challenges in the spirit of democratic transparency.
This TRC would also give judges who served under apartheid, like Johann Krieglar, to come forward and share how attacks on Judge President Hlophe have been funded or the ways in which Freedom Under Law, for which he is a spokesperson, may have been used as a vehicle to drive regime reversal in the Western Cape’s High Court Division.
Moreover, the manner in which it has colluded with the Democratic Alliance to try and usher a post-Hlophe judicial dispensation would be brought to bear.
This TRC would be expansive in scope and not only deal with instances of corruption but allow legal practitioners the platform to air some the matters that they cannot speak on due to rules contemplated for them by the Legal Practitioners Council.
All prospects for a decolonial legal fraternity rest on such or similar an effort. Foregoing the opportunity would prove detrimental for the transformed society to which the preamble of the Constitution refers in its dream.
Whether this TRC is instituted or not, one thing is certain: the mask will lift slowly off the face of the noble profession and if its indiscretions are released too suddenly, the prospects of anarchy will be much higher. Thus, it would be prudent to regard the Hlophe affair as a whisper from legal futures.
* Siphokuhle Mathe is an independent political economist and public policy analyst.
** The views expressed here are not necessarily those of Independent Media.