Judge puts Cape race row papers away for good
By Tony Weaver and Anel Powell
"I have no intention of going down in history as the judge who was publicly accused by his judge president of overt racism."
That is the explanation given by Justice Wilfred Thring, who has been at the centre of the race row in the Cape Provincial Division, for his taking the extraordinary step of placing all papers relating to the issue in the national state archives.
Judge Thring took the step after trying for eight months to get a response from Chief Justice Pius Langa to his comments about Cape Judge President John Hlophe's racism report.
And in an equally extraordinary step, Judge Thring says he has not ruled out taking legal action against Judge Hlophe for allegedly "defamatory" statements.
Judge Thring has been at the centre of the race row in the Cape High Court after it was alleged that Judge Hlophe had deliberately assigned the Mikro Primary School Afrikaans language case to him because Judge Hlophe allegedly believed he would "f..k it up".
For the first time, Judge Hlophe's version of the Mikro matter has emerged.
In a letter to Judge Thring, included in the papers filed with the archives, Judge Hlophe wrote: "I deny that I said the case was allocated to you 'in anticipation that (you) would decide it wrongly ... what I did say, if Mr (Norman) Arendse (counsel for the Western Cape Department of Education) had reservations about you, this was an opportunity to test the independence of the judiciary' ."
From voluminous correspondence between Judge Thring and former Chief Justice Arthur Chaskalson and his successor, Chief Justice Langa, and obtained by the Cape Times, a picture has emerged of vicious infighting in the Cape High Court.
It portrays a bench deeply divided and plagued by, in Judge Thring's words, "cloak-and-dagger" manoeuvring and grandstanding by judges.
Referring to Judge Hlophe's report on racism in the Cape Provincial Division - written in November last year and handed to Cape judges on February 21 - Judge Thring says in his submission to Judge Chaskalson that it "came as a shock to me to learn (from it) that over a period of three years (Judge Hlophe) appears to have been nursing strong feelings of resentment and humiliation towards me".
"For reasons which are not apparent to me, he appears to have allowed his resentment and humiliation to fester in his mind and to assume their present exaggerated proportions.
"Thereby, with respect, he has occasioned himself needless distress, which is unfortunate."
Judge Thring wrote that "in my respectful view, the judge president's apprehensions about (white) racism in the Cape Provincial Division are less real than imagined".
"About the 'perceptions' of others I am not able to speak, for I am not privy to their minds. But those who are unable to distinguish perception from reality surely inhabit a world which is dangerous, not only to others, but also to themselves: for they run the risk of being led by their imagination into a kind of self-fulfilling and self-perpetuating paranoia where, eventually, they may become prepared to believe almost anything that may be suggested to them along certain prejudged lines as though 'perception', a kind of new gospel, were fact."
Judge Thring also says he cannot see himself "sitting or working harmoniously" with Justice Siraj Desai "unless he could furnish an acceptable explanation for his conduct".
This relates to Judge Desai's talking to the media about racism in the Cape division without taking it up first "internally, with the judge president, or at the very least, with those he considered to be blamed".
This, Judge Thring said, "occasioned this bench and its members a great deal of harm and embarrassment".
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.