Advocate Isaac Shai is an associate professor of law at Unisa.
Advocate Isaac Shai is an associate professor of law at Unisa.

Judge President Hlophe and the politics of legal transformation

By Isaac Shai Time of article published Apr 21, 2021

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Law played a decisive role in the dispossession and oppression of African people in South Africa. In post-apartheid South Africa, law was once again poised to play a central role as an instrument for radical transformation.

The South African Constitution is regarded as a lodestar that guides the process of transformation. However, it appears that there are fundamental questions that as a country we either forgot to ask or took for granted.

One critical aspect that is scarce, particularly in public discourse on the nature and trajectory of our constitutional democracy, is the tension between transformation and “the deeply entrenched attitudes towards and thinking about what the ‘The Law is’, how it works and its function in the legal system and society”.

The majority of legal scholars, legal practitioners, judges and even politicians are overwhelmed, and in turn, overwhelm society with one particular understanding of “The Law”, its functions and its relationship with society.

This is an understanding of law as a neutral, objective and value free scientific endeavour. Naturally, there will be tensions and contradictions between this understanding of the law and the Constitution on the one hand and the dictates of transformation on the other.

The current trials and tribulations surrounding the Western Cape Judge President Hlophe sharply bring forth these tensions and contradictions.

A “judicial scoundrel”, a “blight to the judiciary”, “an embarrassment” “dishonest” and “incompetent”. These demeaning and neurotic expletives have been used by some public commentators to describe Judge President John Hlophe.

This is ostensibly because of the recent Judicial Services Commission (the Commission) Tribunal finding that Judge President Hlophe (1) improperly attempted to influence the two Justices of the Constitutional Court to violate their oaths of office;(2) his conduct seriously threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court; (3) his conduct threatened public confidence in the judicial system.

It should be noted that in terms of the Judicial Service Commission Act (the Act), the Tribunal only submits a “report” to the Commission. Technically speaking, the Tribunal does not make a “finding” per se. It is the Commission that makes a “finding”.

In terms of section 20(1) of the Act, “the Commission must consider the report of a Tribunal at a meeting determined by the Chairperson … ”. Section 20(3) of the Act makes it clear that it is only after consideration of the report and representations made by the respondent and if applicable, the complainant, that the Commission makes a finding. Once again, and technically speaking, as things stand and before the Commission makes a Finding, there is no decision yet on JP Hlophe.

How do we then make sense of the deeply demeaning expletives which are being unleashed on JP Hlophe despite the fact that no decision has yet be taken on him?

The reasons are varied and complex. They are at once legal and political. However, the hegemonic approach in public discourse has been to singularly focus on the reasoning contained in the Tribunal Report to the exclusion of other complex forces at play. This is not wrong in itself, although it is analytically inadequate.

A much more productive and rewarding approach may consist in disentangling oneself from what Pierre Bourdieu calls “the juridical field” in order to deconstruct other forces at play in the Hlophe saga. This process of disentanglement does not presuppose leaving the juridical field completely.

It instead invites us to inhabit the “border”, which is the space between the juridical and the political. However, this approach requires that we critique a commonsensical understanding of the relationship between law and politics.

The dominant legal ideology in South Africa is a good start. This is the ideology of positivism and the practice of formalism. It is held dearly by a large number of legal scholars, who in turn, impart it on students of law. The students, who later become “practitioners” of law and perhaps members of the bench, are products of this indoctrination. The indoctrination does not only apply to legal scholars but sweeps through society, with a few exceptions.

The “sleight of hand” that legal positivism and formalism use for self-sustenance is through self-projection as natural, commonsensical and self-evident. Both legal positivism and formalism revel in the separability of phenomena. In this sense, legal norms are artificially separated from other societal norms. Law is said to be only “intelligible as an internally coherent phenomenon”.

Law is represented as objective and neutral. Adjudication is regarded as a mechanical process wherein rules are simply applied to facts. In this sense, legal reasoning is said to be autonomous and guided only by legal “texts”.

It is possible that the legal or juridical field does have some autonomy, albeit artificial, and it is in this sense rewarding to have an appreciation of its Byzantine make up. It is the case that the legal or juridical field does have its own “internal protocols, assumptions, characteristic behaviours and self-sustaining values – what we may informally term a “legal culture”. It is also a site of power and therefore its peculiar politics. These politics come alive in the case of JP Hlophe.

A brief diachronic observation of the case thus reveals the following: In 2009, the Commission found that that JP Hlophe was not guilty of misconduct. The then Premier of the Western Cape, Helen Zille, and Freedom under Law then challenged the Commission’s Findings. The matter ultimately ended up at the Constitutional Court.

We recall that the Constitutional Court was the complainant at the Commission. The decision of the Constitutional Court deserves several academic books on its own. We are now in 2020, and a Tribunal, which was established as a result of amendments to the Act, hears the matter. Here the notion of retrospective application of the law should provide academics with ample assignment questions.

The Tribunal hears the matter and compiles a “report”. However, it is “discovered” that there are actually two charge sheets. One from 2013 and one from 2020. The first charge sheet alleges “an attempt to improperly influence” and the second one alleges “an attempt to improperly interfere or influence”.

What is interesting here is not so much the existence of two charge sheets. It is the “finding” of the Tribunal: the Tribunal finds that JP Hlophe “improperly attempted to influence the two Justices …” At this moment, the notion of “attempted to improperly influence” changes into “improperly attempted”. The significance of this, if any, is left to the JSC to fathom. In the meantime, the two witnesses change their statements.

The Tribunal then rules that the change is not material ostensibly because it is not prejudicial to JP Hlophe. The question is: if it is not material, why change it. More food for thought. The Tribunal’s decision is therefore an example of the autonomy of the politics of law. However, as suggested above, this “autonomy” is artificial because it is contingent and has a hidden dynamic with the happenings outside the field of law.

The contingency of the juridical field on forces and “noises” outside itself and the hidden dynamic it has with these forces is oblivious to the legal positivist and formalist. Legal positivist and formalists are incapable or refuse to see that central to JP Hlophe’s case is the essence and trajectory of the transformation project in South Africa.

Zille of the Democratic Alliance and Judge Kriegler of the Freedom Under Law, exemplify this complex dynamic. It would be a grave mistake to separate their political views on colonisation and transformation and their “weaponisation” of the law to annihilate JP Hlophe.

Zille has been consistent in her egregious view that colonisation had its positive side. Judge Kriegler has recently claimed, among others, that post-apartheid South Africa inherited a competent judiciary with high levels of expertise, that the rejection of competent white Counsel is impoverishing the bench and that had Judge Hlophe practised law before he went to the bench, he would have been a better judge.

Anti-transformation political views are dressed in a legal garb and transported into the juridical field where it is hoped that because of the largely positivist and formalist nature of our law, they will be received by the law as purely legal matters. In this sense, those who dare question the law are easily and oppressively dismissed as attacking the rule of law.

However, in the context of a country that is wrestling with transformation, the question is: what assumptions go unchallenged when we accept legal positivism and formalism as part of the transformation process? What consequences attach to a conception of law as neutral, autonomous, objective and scientific?

Prof van der Walt has presciently observed, that “a transformative purpose can be effectively frustrated by a seemingly technical and neutral but actual reactionary interpretation that subjects the validity and efficacy of the reform laws to the effective veto of a requirement that it should conform with legal tradition”.

The result of accepting things as they are is that a historically Eurocentric and culturally particular epistemology is privileged at the expense of other equally valid epistemologies. In the process, epistemic violence is validated and naturalised. The incentive to question, critique injustices and dare to think differently is numbed. It is no wonder that when Judge Hlophe raised the relevance of common law, he was greeted with oppressive ridicule.

Judge Hlophe is among the few jurists to publicly confront racism in the juridical field. He is also among the few jurists to question the pre-eminence of what is called common law. Could it be that he is being punished for this? The dominant discursive strategy seems to point to some form of vendetta.

The discourse seems to have been patterned in such a way that anyone who dares speak about the possibility of the injustice being meted to Hlophe can be easily dismissed.

After all, if someone has been labelled a scoundrel, an embarrassment, and dishonest, it can only be dishonest people and fellow scoundrels who dare suggest that there may be something sinister at play.

* Advocate Isaac Shai is an associate professor of law at Unisa.

** The views expressed here are not necessarily those of IOL and Independent Media.

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